1. Negligence – Duty of Care Greg Young greg.young@lawyer.com
LAW OF TORTS
LECTURE 4
Negligent Trespass
Negligence – Duty of Care
Greg Young

2. NEGLIGENCE AND FAULT IN TORTS
INTENTION
TRESPASS
NEGLIGENCE
the action
CARELESS

3. NEGLIGENT TRESPASS
Intentional or negligent act of D which directly causes an injury to the P or his /her property without lawful justification
The Elements of Trespass:
fault: intentional or negligent act
injury must be direct
injury may be to the P or to his/her property
No lawful justification

4. NEGLIGENT TRESPASS
While trespass is always a direct tort, it is not necessarily an intentional act in every instance. It may be committed negligently
Negligent trespass is an action in trespass not in negligence:
Where the facts of a case permit, it is possible to frame an action in both trespass and negligence on the same facts
Williams v. Molotin (1957) 97 CLR. 465.

5. What is Negligence? duty breach; resultant damage
It is the neglect of a legal duty
It involves the three elements of
duty
breach;
resultant damage

6. Negligence: The Elements
Duty of care
Negligence
Breach
Damage

7. Negligence: The Early Cases
Heaven v. Pender
(Defective equipment supplied to plaintiff painter)
The dicta of Brett MR:
whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger.

8. Donoghue v. Stevenson
Ginger beer-decomposing snail-P has shock-gastroenteritis
No privity of contract between P and D. Issue was whether D owed P a duty
Dicta of Lord Atkin
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissions

9. NEGLIGENCE Grant v Australian Knitting Mills (1936)
The application of the rule in D v S
a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care

10. NEGLIGENCE: THE DUTY OF CARE
The dicta of Lord Atkin in Donoghue v Stevenson:
whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger.
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour/another

11. Negligence: (Duty of Care)
The Duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another.
When does one owe a duty of care?
Whenever one is engaged in an act which he or she can reasonably foresee would be likely to injure another person, one owes a duty of care to that other person

12. The Modern Requirements for the Duty of Care
Jaensch v. Coffey (1984) per Dean J. p587-8
A duty situation would arise from the following combination of factors
A reasonable foreseeability of real risk of injury to P either as an identifiable individual or a member of a class of persons
The existence of proximity between the parties with respect to the act or omission
Absence of any rule that precludes such a duty

13. What is Reasonable Foreseeability?
Reasonable foreseeability presupposes an objective or a reasonable person’s standard
The reasonable person is an embodiment of community values and what the community expects of a responsible citizen
The concept allows us to evaluate D’s conduct not from his or her peculiar position, but from that of a reasonable person similarly placed
Reasonable foreseeability is a question of law

14. Reasonable Foreseeability: Case Law
Nova Mink v. Trans Canada Airlines [1951] (Air traffic noise causing minks to eat their young ones-No foreseeability)
Palsgraf v. Long Island R.R. Co. (1928) (Railway guards helping falling passenger-fireworks explosion causing injury to plaintiff.-No foreseeability)
Chapman v. Hearse (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-action against D who caused initial accident- Foreseeability upheld)

15. The Scope of Reasonable Foreseeability
United Novelty Co. v. Daniels (1949) (Workers cleaning coin operated machine with flammable substance-rat in machine runs into fire place causing fire damage and death-Foreseeability upheld)
Jaensch v. Coffey (1984) (Car accident-spouse goes to hospital to see injured partner-suffers shock from what she sees and hears of husband’s condition-action against D who caused accident-Proximity-Duty)

16. Reasonable Foreseeability: Established Category Of Duty of Care
Koehler -v- Cerebos (Australia) Limited [2005] HCA 15
McHugh, Gummow, Hayne and Heydon JJ (majority): “The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful” [33]
“The duty which an employer owes is to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable”

17. Proximity
Jaensch v. Coffey (1984) (Car accident-spouse goes to hospital to see injured partner-suffers shock from what she sees and hears of husband’s condition-action against D who caused accident-Proximity-Duty)
Gala v. Preston (1991) (Duty relationship between parties engaged in an illegal enterprise-No proximity-No duty)
Nagle v. Rottnest Island Authority (1993) (P injured while diving into a rocky pool- pool promoted and operated by D-Proximity, Duty upheld)
Held: the board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty... require that they be warned of any foreseeable risks of injury associated with the activity so encouraged

18. The Main Features of Proximity
Degree of proximity
Evaluation
Physical
Evaluation
of legal
and policy
considerations of
what is fair
and reasonable
Circumstantial
Causal

19. Proximity Criticised
The High Court has expressed reservations about the usefulness of the notion of proximity in recent times
Hill v Van Erp (A unifying concept of proximity described as “ambitious” per Dawson J; “of limited use in the determination of individual disputes” per Gummow J; and affording no real guidance “in determining the existence of a duty of care in difficult and novel cases” per McHugh J)
Perre v Apand (Proximity was no longer the “talisman for determining a duty of care” per McHugh J; and “incapable of fulfilling, unaided, the function of demonstrating the existence or absence of duty of care” per Kirby J)

20. Proximity - Criticised
Sullivan v Moody (2001) 207 CLR 562
Facts – In separate proceedings, fathers were denied access to their children as Dr Moody (employed by the SA Dept of Community Welfare) incorrectly diagnosed sexual abuse; The fathers sued in negligence for psychiatric injury.
Judgment – Appeals dismissed as no duty of care exists to protect a suspected abuser from emotional distress
Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:
[573] “…foreseeability of harm is not sufficient to give rise to a duty of care”
[578] “The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more than a century … it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established”

21. Proximity: Unclear how it is to be Applied Now?
Perre –v- Apand: Although proximity is not a universal test for duty of care, it is a concept which has not been totally abandoned (per McHugh J)
“Incremental Approach”
- Sutherland Shire Council –v- Heyman: per Brennan CJ “develop incrementally and by analogy with established categories”
- Perre –v- Apand: incremental approach adopted by McHugh J
Incremental Approach criticised in Brodie –v- Singleton Shire Council by Callinan J as retreating to a “safe haven”

22. DUTY CATEGORIES: To whom is duty owed?
One owes a duty to those so closely and directly affected by his/her conduct that she ought reasonably to have them in contemplation as being so affected when undertaking the conduct in question.
Examples:
- Employer/Worker
- Driver/Other Road Users
- Doctor/Patient
- Consumers, users of products and structures
Donoghue v Stevenson
Voli v Inglewood Shire Council
Bryan v Maloney
Users of premises etc.
Australian Safeway Stores v Zaluzna

23. DUTY CATEGORIES: To whom is duty owed?
One owes a duty to those so closely and directly affected by his/her conduct that she ought reasonably to have them in contemplation as being so affected when undertaking the conduct in question.
Examples:
- Employer/Worker
- Driver/Other Road Users
- Doctor/Patient
- Consumers, users of products and structures
Donoghue v Stevenson
Voli v Inglewood Shire Council
Bryan v Maloney
Users of premises etc.
Australian Safeway Stores v Zaluzna

24. Unborn Child The unborn child: - Lynch v Lynch (1991)
The duty is not simply to take reasonable care in the abstract but to take reasonable care not to injure a person whom it should reasonably be foreseen may be injured by the act or neglect if such care is not taken (Winneke CJ/ Pape J)
There can be no justification for distinguishing between the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his proud father and of a child en ventre sa mere whose mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a child ( Per Gillard J in Watt v Rama)
- Lynch v Lynch (1991)
Wrongful life cases
Harriton (by her tutor) v Stephens; Waller (by his tutor) v James & Anor; Waller (by his tutor) v Hoolahan [2004] NSWCA 93 (29 April 2004)

25. RESCUERS There are two separate issues in rescue:
The ‘duty’ to rescue
The duty of care owed to the rescuer
There is no positive legal obligation in the common law to rescue
The law does not ‘cast a duty upon a man to go to the aid of another who is in peril or distress, not caused by him
There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance
Horsley v Macleran (The Ogopogo) (1971) 22 DLR
One is only required to use reasonable care and skill in the rescue

26. THE DUTY OWED TO RESCUERS
The rescuer is generally protected : torts recognizes the existence of a duty of care owed to the rescuer
The issue of volenti-non fit injuria: This principle does not seem to apply in modern tort law to rescue situations
Note however the case of Sylvester v GB Chapman Ltd (1935) :attack by leopard while attempting to put out a smouldering cigarette in straw
‘The cry of danger is the summons to relief. The law does not ignore these reactions of the mind.. It recognizes them as normal… and places their effects within the range of of the natural and the probable [and for that matter the foreseeable] per Cardozo J in Wagner v International Railway Co. (1921)
Chapman v Hearse
Videan v British Transport Commission (1963) (rescue attempt to get a child trespassing on railway line)
Rescuers may recover for both physical injuries and nervous shock
Mount Isa Mines v Pusey (1970)
The US fire-fighter’s Rule does not apply in Australia and the UK
Ogwo v Taylor (1988) AC 431

27. Unforeseeable Plaintiffs
In general the duty is owed to only the foreseeable plaintiff and not abnormal Plaintiffs.
Bourhill v Young [1943] AC 92
Levi v Colgate-Palmolive Ltd (1941)
Haley v L.E.B. [1965] AC 778

28. IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY OF CARE
The Civil Liability Act together with the Civil Liability Amendment (Personal Responsibility) Act 2002 govern the law of negligence in NSW.
The Civil Liability Act was enacted 28th May 2002 and received assent on 18 June 2002
Rationale behind the legislation:
to limit the quantum of damages for personal injury and death in public liability instances; resultantly lowering insurance premiums.
to discourage ‘over litigation’, by the imposition of restrictions and obligations and responsibilities upon plaintiffs and counsel

29. Duty of Care: Policy
In novel cases, the Courts will not only apply the test of “reasonable foreseeability” but also consider “policy” considerations:
Hill –v- Chief Constable of West Yorkshire [1989] 1 AC 53 (the Yorkshire Ripper’s last victim not owed a duty of care by investigating police)
Sullivan –v- Moody (2001) 207 CLR 562 (suspected sexual assault offenders not owed a duty of care to prevent harm by investigating community services officers)
D’Orta-Ekenaike –v- Victorian Legal Aid [2005] HCA 12 (advocates’ immunity upheld)

30. Civil Liability Act 2002: Duty of Care
Statute overrides the common law and that any negligence claim commenced since 20 March 2002 will be governed by the Civil Liability Act 2002.
Next lecture, we will consider the application of:
general duty of care provisions of s.5B;
situations of obvious/inherent risks under ss.5F to I; and
situations of dangerous recreational activities under ss.5J to N.

31. The Rationale for Reform
[I]t's my view that this country is tying itself up in tape because of over litigation, a long-term trend to see us litigate for everything, to try to settle every problem in our lives...by getting a big cash payment from the courts....a country as small as ours can't afford to have the American-style culture of litigation". (Bob Carr)

32. The Rationale for Reform
‘We need to restore personal responsibility and diminish the culture of blame.That means a fundamental re-think of the law of negligence, a complex task of legislative drafting. There is no precedent for what we are doing, either in health care or motor accident law, or in the legislation of other States and Territories. We are changing a body of law that has taken the courts 70 years to develop’ (Bob Carr)

33. The Approach to Reform: Government’s View
We propose to change the law to exclude claims that should never be brought and provide defences to ensure that people who have done the right thing are not made to pay just because they have access to insurance (Bob Carr)
We want to protect good samaritans who help in emergencies. As a community, we should be reluctant to expose people who help others to the risk of being judged after the event to have not helped well enough (Bob Carr)