The ICFAI University Dehradun

Summer Internship Program 2019

Project Report

Student’s Name: Adarsh Meher

Enrolment No: 18FLICDDN01063

Batch Name and Year: BBA.LLB(Hons), 2018-23

SIP Station: Akshaya Patra Foundation, sector-7, Rourkela, Odisha

Duration: Four Weeks, (14/05/2019) to (14/06/2019)

Project Title: A Review of Negligence

Submitted by Submitted to

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A review of Negligence and it’s case study

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Acknowledgements
The given project report was prepared after rigorous research and compilation work. It could not
have been possible but for the help of the below mentioned individuals.
My internship co-ordinator, Mr.Rajendra Kumar Nath, has been a constant guide and has
supervised me very nicely on the complete procedure of dealing with real life cases and
understanding legal issues throughout my internship. He has helped me the most in the
completion of this project by his constant guidance and suggestions. I would like to thank him
for his great mentorship.

My faculties from the university, who have helped me achieve the basic level of knowledge
regarding various subjects of laws, I would like to thank them very much, because without their
help, it would have been impossible to deal with the topics I encountered during the course of
my internship. I am very grateful to them.

Finally, my friends and co-interns, who supported me during the preparation of this project, and,
worked with me to support me when I was stuck at multiple occasions.

I thank you all for your help and Support.

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 A Project Report

In general terms, negligence is “the failure to use ordinary care” through either an act or omission. That is,
negligence occurs when:

 somebody does not exercise the amount of care that a reasonably careful person would use under
the circumstances; or
 somebody does something that a reasonably careful person would not do under the
circumstances.

However, it has also had a counter-balancing potential, as by expanding liability laterally, it has made the
question of causation more complex – extending it to omissions, and other more complex connections
which weren’t ever envisaged by the tort of trespass. Further, the concept of fault, introduced to provide
interpersonal justice, has now expanded to consider questions of social needs, distributive justice and
stricter liability. With the mid-20th Century, the law of tort has become more a tool to compensate accident
victims, and distribute cost among those best able to bear it, than an admonitory tool. Thus, the lack of
consensus as to the purpose of tort law, and its relative inability to cope with the question of accident
compensation in a welfare-driven society has meant that the system is under constant stress.

DUTY OF CARE

Introduction

Negligence is the breach of a legal duty of care by an inadvertent act or omission which injures another
person.

The Elements

Negligence involves:

A duty of care – the D owed the P a duty to take care in the circumstances.

A breach of that duty – the D’s act/omission failed to reach the standard of carefulness required by the
circumstances and so there is a breach of the duty to take care.

Causation – the D’s breach caused the P’s damage

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Damage – the damage P suffered is legally recognizable and not too remote from the breach of duty.

Donoghue v Stevenson [1932] AC 562 established the tort of negligence.  Lord Atkin saying that “In English
law, there must be and is some general conception of relations giving rise to a duty of care…”

The House of Lords found that the P could recover damages from the manufacturer, even though there
was no contract between the parties, where negligence allowed the snail to enter the bottle. Lord Atkin
enunciated the neighbour principle:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbor.”

Who then is your neighbor?

“Persons who are so closely and directly affected by one’s act that one ought reasonably to have them in
contemplation.”

The Duty of Care

For an action in negligence, the D must owe a duty of care to the P in the given circumstances. Ld Atkin in
Donoghue v Stevenson [1932] AC 562 said:

“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 so closely and directly affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which are called in question.”

Thus, the test to establish a duty of care is:

(i)     reasonable forseeability

(ii)   proximity (or the tests which have replaced it) where there isn’t an established duty of care.

The Notion of Reasonable forseeability

The duty of care is primarily premised on reasonable foreseeability, as no liability will arise in its absence.
This is a question of law, and in standard cases, such as motor accidents, manufacturers of defective
goods and so on, the foreseeability of harm where there is a lack of care, it is obvious in the circumstances,
and the precedents are well-established, and it is not an issue.

Reasonable Forseeability as an Essential Test for Duty

Nova Mink v Trans Canada Airlines [1951] 2 D.L.R. 241 During whelping season, mink, they are prone to
devour their young when frightened by noise. The Court held that once the defendant is “apprised” of this

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harm, they may be required to alter their activities such that the risk is reduced or eliminated – that is desist
from flying low over the ranch – to show that reasonable care had been taken.

Palsgraf v Long Island Railway Co. (1928) 162 N.E. 99 The plaintiff was standing on the platform to catch a
train, when another man jumped onto a train as the doors were closing, and got caught between the doors.
The train guards pushed him into the train, and in the process, a paper package of fire crackers fell under
the train, the impact causing an explosion. As a result, scales toppled over, and injured the platform . The
Court held that the plaintiff was not reasonably foreseeable, as they were at the opposite end of the
platform. That is, they were beyond the range of reasonably foreseeable peril. It was held that “the victim
does not sue derivatively or by right of subrogation to vindicate an interest invaded in the person of
another….he sues for breach of duty to himself.” That is “a wrong to another cannot be the basis of the
plaintiff’s claim and even less a wrong to a mere property interest.”

The Scope of Reasonable Foreseeability

Chapman v Hearse (1961) 106 CLR 112 Chapman, due to his negligent driving was involved in an
accident, on a dark and gloomy night. His vehicle had turned over, and he was thrown onto the highway. A
Dr Cherry whilst in the process of helping him, was struck by Hearse, and killed. The question was whether
Chapman was contributorily negligent. Chapman argued that it was not reasonably foreseeable, as it was
not reasonable to forsee that Dr Cherry would have come been struck and killed in rescuing Chapman.
However, the Court held that it was “a consequence of the same general character that was reasonably
foreseeable as not unlikely to follow a collision on a dark, wet night upon a busy highway” (at 120). That is,
it is not necessary to foresee the precise sequence of events, just that something of the general character
is reasonably foreseeable in – that is they are a sequence of events which are not unlikely in the
circumstances. It was held that it was reasonably foreseeable that a person aiding others in an accident
could be injured themselves. All that is required is that consequences of the same general kind are not
unlikely.

The Concept of Proximity

With Jaensch v Coffey, a new element of negligence was required to establish a duty of care in cases
where there isn’t an established duty of care, there is a requirement of proximity between the parties, for
negligence to lie. However, this has increasingly been put in doubt in the cases of Hill v Van Erp and Perre
v Apand, where the HC has raised grave doubts as to its usefulness as a universal determinant of a duty of
care.

Proximity at its Height!

Jaensch v Coffey (1984) 155 CLR 549 Deane J cited Lord Atkin’s explanation that where there is a chance
for intermediate examination, of the bottle before it reached the consumer, then there was no longer a
requisite ‘proximity’ and that the consumer is no longer within the class of ‘neighbours.’ That is Deane J
cited that Lord Atkin stated that the duty of care based on reasonable forseeability would be too wide
unless restricted by the notion of proximity. The plaintiff’s husband had been injured due to the defendant’s
negligence, in a motor cycle accident. The plaintiff, having seen her husband struggling for life in the
hospital, developed severe anxiety and depression caused by her worry about her husband’s state of
health over a period of weeks. Mrs Coffey argued that it was reasonably foreseeable that a spouse would

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suffer psychiatric disability as a result of injury to her husband. However, the Court held that reasonable
foreseeabilty alone was too broad a principle. However, it was held that Mrs Coffey’s involvement at the
hospital when her husband was injured, in the aftermath was sufficient to satisfy proximity requirements. It
was developed as a limitation on the neighbour principle. The question is what is involved in the notion of
nearness and closeness. The HC held that threr were three kinds of relationships, which fulfilled this:

(i)     physical proximity (in the sense of space and time)

(ii)   circumstantial proximity, such as an overriding proximity

(iii) causal proximity.

Cook v Cook (1986) 162 CLR 376 The D was a learner driver, whom the plaintiff invited to drive with him.
The P was injured in an accident due to the negligence of the P – the P had accelerated instead of braking
when faced with a dangerous situation. The HC held that whilst the duty of care owed to general motorists
is the same as those for other motorists, as the plaintiff knew of the skill levels of the plaintiff, and accepted
the risks, the defendant, in relation to the plaintiff will be judged according to the standards of a reasonable
learner driver. However, the plaintiff was still successful, as it was held that the defendant’s negligence was
so egregious that it did not satisfy the duty of care required of a reasonable learner driver.

Gala v Preston (1991) 100 ALR 29 Preston and Gala were part of a group of four youths, who after having
consumed a good deal of alcohol, stole a car and crashed it. Preston was hurt in the crash, and sued Gala
for negligence. At first instance, there was a judgement for him, however, this was reversed by the Full
Court of the Supreme Court of Queensland. On appeal to the HC, Mason CJ, Deane, McHugh, Gaudron JJ
held that the parties were not in a relationship of proximity such as to give rise to a relevant duty of care,
since it was not possible or feasible for a court to determine what was an appropriate standard of care to be
expected of the first appellant as the driver of the vehicle. Brennan, Toohey and Dawson JJ, in separate
judgements, found that Preston would be unsuccessful, for different reasons.

Nagle v Rottnest Island Authority [1993] 112 ALR 393  Nagle was injured when he dived off a partially
submerged rock ledge in the Basin, in Rottnest Island. His injuries were caused when he struck himself on
one of the rocks which were adjacent to the platform, and below the low water mark. Rottnest Island
Authority was was under a statutory duty to manage and control for the benefit of the public the public
reserve on the coast of the Island. That reserve adjoined the Basin. It promoted the Basin as a swimming
venue, and encouraged the public to use it for that and other purposes by installing, maintaining and
servicing various facilities on that part of the reserve which was immediately adjacent to the Basin. Brennan
J dissenting, allowed the appeal by Nagle on the basis that :

(i)                 The respondent brought itself into a relationship of proximity with those visitors who lawfully
visited the Island and resorted to the Basin for the purpose of swimming with respect to any foreseeable
risks of injury to which they might be exposed. This was a case in which it was possible to ascertain the
existence of a generalised duty of care without looking to foreseeability, a concept which in many other
situations is the influential, if not decisive, determinant of the existence of a relationship of proximity.

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(ii)                The giving of a warning that the ledge was unsafe for diving was the action that a reasonable
person in the respondent’s situation would have taken to guard against the foreseeable risk of injury which
existed.

(iii)             The likelihood was that the appellant would have been deterred from diving by an appropriate
warning sign.

Bryan v Maloney (1995) 69 ALJR 375 Bryan, a professional builder for the Qs, who sold it to Mrs Maloney,
who upon inspection, found nothing to be wrong with the property. However, within 6 months, there were
cracks in the house, and extensive damage was suffered. The damage was caused because Bryan hadn’t
laid the footings properly. Mrs Maloney was successful at first instance. On appeal to the HC, the question
was whether the relationship between Bryan and Mrs Maloney was sufficiently proximate to attract liability.
The Court held that as a house is the most significant investment a buyer it is reasonably foreseeable that
the builder’s negligence would cause economic loss not only to the first buyer, but also to subsequent
buyers. Further, it was held that there was a causal proximity between subsequent buyers and the builder.
It was held that the relationship between the builder and the subsequent owners was comparatively similar
to that between the builder and the original owners. The HC held that had the building collapsed and
caused personal injury or property damage, the builder would be liable, so there is no reason why the
builder should not be liable for the economic loss incurred in rectifying the situation. The builder argued that
allowing liability to be incurred would cause an indeterminate liability. However, the HC held that this was
not so, as the builder would only be liable once, after which the building is fixed. Thus, a new, novel tort
liability of economic loss for a subsequent loss to a subsequent owner due to a builder’s negligence was
found. It is worth noting that Brennan J found the notion of proximity to be too elastic to provide any real
test.

Proximity Downgraded/Abolished

Hill v Van Erp (1997) 71 ALJR 487 Hill drew up Mrs Curry’s will and got Mr Van Erp to witness the will,
which included Mrs Van Erp as one of the beneficiaries. However, s 15(1) of the Succession Act 1981 (Qld)
states that where a beneficiary’s spouse witnesses the will, then, that disposition is null and void. So, the
bequest Mrs Curry had left Mrs Van Erp went to Mrs Curry instead, and Van Erp sued Hill for negligence.
Hill admitted the negligence, but argued that she did not owe a duty of care. At first instance, Mrs Van Erp
was successful. In dismissing the appeal by Hill, the HC took the opportunity to downgrade the significance
of proximity. Dawson J (with whom Toohey J concurred) stated that:

(i)     proximity is:

–     not a unifying principle

–     not a universal determinant of the existence of a duty of care.

However it:

–     expresses a result, rather than a process

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–     and is a convenient way of labeling the extra requirement, in addition to reasonable foreseeability to
establish a duty of care.

(ii)   Further, he put forward a three stage inquiry in order to establish a duty of care:

(1)  Is the harm reasonably foreseeable? Noting that more than reasonable foreseeability alone is required.

(2)  Where a new category of liability is suggested, examine established categories by way of analogy to
achieve incremental development.

(3)  Determine whether the incremental development is justified by reference to policy considerations.

(iii)  He held that imposing liability on a solicitor was consistent with community standards, and further, that
liability was not undeterminant. It was held to be determinant by the contents of the will. Further, it does not
conflict with contractual obligations, as contractual and tortious liability can be concurrent. Further, he held
that there needs to be special consideration in relation to wills, as the defects will not become apparent until
after the death of the testatrix. The specificity of the the situation with regard to wills in relation to
beneficiaries distinguishes it from other third parties. It was held that finding the solicitor liable in such a
situation does not curtail their legitimate pursuit of commercial advantage. It was further held that the
community relied on solicitors as specialists.

This decision brought Australia in line with other common law countries

Perre v Apand (HC) [1999] 73 ALJR 1190 Apand was the distributor of potato seeds, and had negligently
provided seeds diseased seed to the Sparnons – the owners of the property next to the Perres. They
produced a crop infected with bacterial wilt. Whilst the Perres crop was not infected, they exported the bulk
of their crop to WA, where there was legislation prohibiting the sale of potatoes grown, harvested, packed
or cleaned anywhere within a 20 km radius of where the infected crop was. The Perres sued Apand for
damages for negligence. It was not disputed that the loss suffered by the Perres was reasonably
foreseeable and the evidence revealed that Apand knew persons such as the appellants would be liable to
suffer economic loss in the event of an outbreak of bacterial wilt.

Apand argued that imposing a duty of care in this situation would impose an indeterminate liability for an
indeterminate time and to an indeterminate class of persons. Further, they argued that a duty to take care
to avoid economic loss to another was inconsistent with commercial standards, these being that one is free
to gain an economic advanatage. However, the Court held that there was a determined class of people –
those within 20 km radius of the affected property, and that it did not unreasonably deter economic
freedom. The HC allowed the appeal, and in doing so, replaced the notion of proximity with five different
tests:

(1)   The protected Interests and salient features test (Gleeson CJ and Gummow J)

(2)   Recognised Legal Rights Test (Gaudron J)

(3)   Three Stage Caparo v Dickman test (Kirby J)

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(4)   Incremental Approach (McHugh and Hayne JJ)

(5)   Factors in Combination and Incremental approach (Callinan J)

Protected Interests and Salient Features Test

Protected interests are those kinds of detriment the law is willing to protect. E.g:

Exportation sales

Loss of land value

Loss of tenants

Salient features => Must identify the salient features which combine to give rise to a sufficiently close
relationship to attract a duty. E.g:

The defendant’s control over the nature and location of the experiment

P’s inability to take steps to protect themselves against the risk exposed.

The leg’n imposing a 20 km quarantine zone made loss certain upon disease.

Having applied the test to the fact situation, Gleeson CJ and Gummow J found that there was a sufficiently
close and direct relationship between Perre and Apand to attract a duty of care.

Recognised Legal Rights Test

It was noted that the law recognises pure economic loss in some areas already. This states that a duty of
care is established where a person knows or ought to know where their acts or or omissions may impair the
P’s rights, and P is not in a position to protect their own interests. It was held that in such situations, the law
ought to impose a DoC to take reasonable care not to act in such a way as to impair reasonably
foreseeable rights.

Three Stage Caparo v Dickman Test

In order to determine whether a DoC exists, three questions need to be answered:

(1)   Was it reasonably foreseeable that conduct or omissions are likely to cause harm to a category of
persons whom P belonged to?

(2)   Does a relationship of proximity or neighbourhood exist between the plaintiff and the defendant?

(3)   Is it fair, just and reasonable that the law imposes a DoC for the plaintiff’s benefit?

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It was held that terms such as “reasonable”, “fair” “proximity” etc. are simply labels to direct the judge to
think about the conceptual framework of negligence actions. None of these should be elevated to the status
of pre-conditions.

Incrementalism

This test was developed as there was a concern with predictability. Are there good reasons to expand the
DoC beyond the existing categories? In order to answer this, three questions must be asked:

(1)   Does it come within an est. DoC?

(2)   If not, was the harm suffered foreseeable?

(3)   If so, the Court should examine analogous cases where the Court has determined whether a DoC has
examined. In doing this, the Court should look at the policy considerations, and the reasoning, and apply
these in the specific case.

This test has been criticized for its temporal specificity.

Combination of Factors and Incrementalism

This test is compendious (slightly incoherent). It was held that courts should move incrementally and
cautiously, and in doing so look at factors such as proximity and foreseeability.

To Whom is a Duty of Care Owed?

Consumers

Donoghue v Stevenson [1932] AC 562  The Court found that there was a sufficiently close relationship
between the consumer and the manufacturer to attract a duty of care. Ld Atkin enunciated the neighbour
principle which stated that there is a requirement to take reasonable care to avoid acts/omissions which
you can reasonably foresee will injure your neighbour. Further, a neighbour was held to be anyone who is
so closely and directly affected by your acts. They are people who you ought to reasonably have in
contemplation when acting or refraining from acting.

Grant v Australian Knitting Mills [1932] AC 85 Dr Grant bought two pairs of underpants and singlets. He
developed an acute rash, and spent three months in hospital as a result, and his doctor feared for his life.
This was caused by an excess of sulphates The HofL, applying Donoghue v Stevenson found that the
manufacturer was liable. The manufacturer argued that there was no duty of care, as there was an
opportunity for intermediate examination. However, the HofL held that as the defect was latent, Dr Grant
couldn’t reasonably be expected to know of the defect, and further, as the garments were worn as expected
to be worn, there was a duty of care.

Road Users

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Bourhill v Young [1943] AC 92 Young, a motorcyclist was killed in a motorcycle accident, due to his
negligence. Bourhill was a bystander, who was standing on the other side of a tram when the accident
occurred. He sued Young’s estate for nervous shock resulting from the accident. The HofL held that whilst
Young owed a duty of care to many, there was no such duty towards an unseen bystander.

Users and Purchasers of Premises

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 Before this case, the duty of care owed to users
of premises differed upon the category of the user. For example, a different duty was owed to invitees
compared to that owed to a trespasser. In this case, Zaluzna, upon entering Safeway store in an affluent
Melbourne suburb, slipped and fell on the floor, as a result of the floor being damp. She sued the store. The
HC held that occupiers have a general duty to take reasonable care to safeguard from injury to those who
enter the land. The Court further held that the distinction between invitees, licencees and trespassers was
artificial, and thus, was abolished.

Bryan v Maloney (1995) 69 ALJR 375 This is the case of the builder and the subsequent owner. The Court
held that there was a duty of care despite the fact that the only connecting factor between the parties was
the house.

School Children

Geyer v Downs (1977) 138 CLR 91 An eight year old child was hit on the head with a bat by another child
when they were playing before school. The Court held that the principal of the school owed a duty of care
to its students, and that this is to be fulfilled by providing supervision while the school gates are open.

The Unborn Child

Watt v Rama [1972] VR 353 The plaintiff’s mother was involved in a car accident whilst pregnant. The child
was born with brain damage as a result of the defendant’s negligence in the accident. The plaintiff argued
that her injuries occurred during the course of the accident, or because of it. The Court held that the plaintiff
was born with injury due to pre natal negligence can sue. It held that the duty of care involved a duty to take
care not to injure a person where it is reasonably foreseeable that the injury will occur. In the current
circumstances, a potential duty exists if and when the child is born. The actual duty is crystallised when the
child is born, and acquires a legal identity.

Lynch v Lynch A mother was found to owe a duty of care to an unborn child who was injured as a result of
injuries caused by her negligent driving. However, the Court restricted the application of such a duty strictly
to the circumstances of the case, as there is a very low threshold which needs to be crossed to establish a
duty of care in motor vehicle accidents.

Rescuers

Chapman v Hearse (1961) 106 CLR 112 The question in this case was whether Chapman had been
contributorily negligent in relation to Dr Cherry’s death, who was struck by Hearse when he was rescuing

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Chapman, who was lying on the road as a result of a car accident caused by his negligence. The Court
held that the threshold for establishing a duty of care is low when dealing with a rescuer, and thus,
Chapman was contributorily negligent.

Other Categories

Home Office v Dorset Yacht Co. Ltd [1970] AC 1004 Juvenile offenders housed in a Boy’s Home were
taken on an excursion to an island. Due to the warden’s negligence, some of the boys escaped using a
yacht owned by the Dorset Yacht Co. They sued the Home Office. The Court found that the Home Office
owed a duty of care to those in the vicinity. However, this was held to be confined by the circumstances
and proximity of the said property.

Weeler & Co v Foot and Mouth Research Institute [1965] 3 WLR 1082 GET FACTS!!!!!!!!!!!!

Alcock v Chief Constable of Police[1992] 1 AC 310 There was a disaster at a football stadium when a stand
collapsed due to the negligence of the defendants who allowed it to become overcrowded. 95 people were
crushed to death. The game had been televised live at the time. Thus, not only were people at the stadium
witness to this terrible tragedy, but people at home witnessed it on their television screens. This was a
class action for nervous shock. The HofL held that there needed to be a sufficient relationship of proximity
required to give rise to a duty of care. This involved “close ties of love and affection” as well as some sort of
physical proximity in time and space.

Wartime

Shaw Savill v The Commonwealth (1940) 66 CLR 344 This was an action by Shaw Savill against the
Commonwealth for damages for the damage caused to the motor vessel Coptic in a collision between the
HMAS Adelaide and the Coptic. It was held that where an action of negligence is brought against the
Commonwealth for acts done in the course of active naval or military operations against the enemy must
fail.

Legal Profession

Rondell v Warsley [1969] 1 AC 191 and Gianarelli v Wraith(1988) 62 ALJR 611 both held that barristers are
immune from negligence actions for in-court work and this also extends to some out of court work. This is
because it is preferable not to interfere with the judicial process. This immunity extends to solicitors acting
as advocates.

Hall v Simons [2000] 3 All ER 673 In three separate cases, clients brought claims their former solicitors,
which was defended on the basis that they were immune from an action in negligence. The HofL
considered whether the immunity should be abolished, or whether it was still justified on policy grounds,
especially the public interest in preventing collateral attacks on court decisions, and in ensuring that
advocates respected their overriding duty to the Court. It was held that immunity should be abolished, on
the basis that immunity is not required to deal with collateral attacks on civil and criminal decisions, and that
the public interest is satisfactorily safeguarded by independent principles and powers of the Court. Further,
it was held that the immunity was not required to ensure that barristers respected their duty to the Court.
This was based on the fact that doctors, who had both a duty to the patients and a duty to adhere to an

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ethical code, are not immune from negligence actions. Further, experience in other jurisdictions such as
Canada demonstrate that such a view is rather pessimistic, and moreover, there are many benefits with
abolishing immunity. These include the end of an anomalous exception to providing remedy for a wrong
committed, and there was no fear of a flood of actions. A barrister by performing his duty to the court to the
detriment of his client could never be called negligent, and there is no possibility of a finding of negligence
where a barrister his conduct was bona fide dictated by his perception of his duty to the Court.

Hill v Van Erp (1997) 71 ALJR 487 The HC has allowed negligence actions against solicitors in certain,
restricted circumstances.

The Case of the Unforeseeable Plaintiffs

Bourhill v Young [1943] AC 92 In this case, the plaintiff was unable to recover, as it was held that it was
unforeseeable that an unseen bystander would suffer from nervous shock as a result of an accident, and
thus, no duty of care existed.

Levi v Colgate-Palmolive Ltd (1941) 41 SR (NSW) 48 The plaintiff had received a free sample box of
products from the defendants. This included a sachet of bath salts, which the plaintiff used, resulting in a
rash, which lasted for a long time. In determining whether a duty of care existed to specially sensitive
plaintiffs two questions must be asked:

(i)     if the D owes a DoC and breaches it, and an abnormal plaintiff by reason of the abnormality suffers an
injury, can they recover on this basis?

(ii)   Does the fact that the plaintiff have an abnormality create a special duty of care?

The Court held that the answer to the first question was in the affirmative, and the second question was
negative.

Further, it was held that if the defendant knows of the pliantiff’s abnormality, then a special duty of care is
found. However, no such duty exists in the normal course of events.

Haley v London Electricity Board [1965] AC 778 The plaintiff was a blind man who fell into a ditch dug by
the LEB, as the safety fence they had erected was too low for him to detect it with his cane. The LEB
argued that he was an unforeseeable plaintiff. However, the HofL held that it was reasonably foreseeable
that a blind person would walk along the pavement, and could be injured as a result of inadequate safety
measures.

Mt Isa Mines v Pusey (1971) 125 CLR 383 The plaintiff was an engineer and witnessed two electricians
who worked for the company being electrocuted. The plaintiff went to rescue them and saw the resulting
horrible burns. He developed a psychiatric disorder which was latent when he saw this. The HC found that
he was reasonably foreseeable, despite a pre-existing susceptibility, and he was awarded damages.

Qualifications to the Duty of Care

Novus Actus Interveniens

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Chapman v Hearse (1961) 106 CLR 112 Chapman argued that Hearse’s actions in hitting Dr Cherry
constituted a novus actus interveniens, and thus, he no longer owed a duty of care, as the causal
connection was broken. However, the Court held that it was exactly this sort of action which was
reasonably foreseeable, and thus, there was no novus actus interveniens and Chapman still owed a duty of
care.

The Opportunity for Intermediate Examination

Farr v Butters [1932] 2 KB 606 Crane manufacturers sold a crane, unassembled to builders where a crane
erector would assemble it for the builders. The erector when he was erecting the crane found that parts of it
were ill-fitting, and accordingly marked the areas with chalk. However, before the defects were remedied,
the erector began working on it, it fell on and killed him. It was held that as the defects were discoverable
on reasonable inspection, and having in fact been discovered by the deceased, the manufacturers did not
owe a duty of care.

Grant v Australian Knitting Mills [1936] AC 85 The Court held that there was no opportunity for intermediate
examination in this fact situation, as the excess of sulphates in the underwear were a latent defect, and it
was not reasonable to expect Dr Grant to have discovered this upon examination.

Kinds of Loss

Physical Damage to Person or Property

This is the most straight forward kind of loss, and the Courts are not in the least hesitant to find a DoC in
these situations.

Nervous Shock

Bourhill v Young, Mt Isa Mines v Pusey and Jaensch v Coffey were examples of nervous shock cases.

McLoughlin v O’Brian [1983] AC 410 A mother suffered nervous shock as a result of seeing her family in
hospital. One of the members died due to their injuries. It was held that there is a three stage test to find for
nervous shock:

(i)     Does the person fall into a class of persons able to sue?

(ii)   Proximity in time and space

(iii)  How was the shock caused?

Quayle v the State of New South Wales [1995] Aust Torts Reports An aboriginal man was taken by his
brother to a local hospital, suffering from alcohol withdrawal symptoms. The nurse on duty handed him over
to police even though he had committed no offence. The deceased hung himself in a police cell. The police
asked the brother to identify the body in the back of a police van on a public street. Not only the brother, but
the mother and other brothers were also compensated for nervous shock in the form of prolonged and

15
pathological grief caused by the police and the hospital’s actions. This case was not appealed, mainly due
to the unwanted publicity it would attract if appealed.

Breach of Duty

The Negligent Act

The Plaintiff must prove that the defendant has breached the standard of carerequired of a reasonable
person. The standard of care is a question law, and whether this has been breached is a question of fact.
The standard is that of a reasonable person. Is the risk foreseeable? There are two main areas which
determine the standard of care, and whether it has been breached:

(i)     foreseeability is a necessary, but not sufficient condition for the breach. The D must take precautions
against the risk.

determines the significance of the risk.(ii)   The calculus of negligence

Vaughan v Menlove (1837) 132 ER 490 The defendant’s hayrig caught on fire, and this spread to the
neighbour’s property. This occurred despite the neighbour’s warning of the hazard. However, the defendant
had disregarded it as he believed it wasn’t a risk. The defendant argued he ought not be responsible where
he bona fide did not believe in a significant risk. It was held that it should be assessed against the other
person.

“Negligence is the omission to do something which a reasonable man guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do, or something which a prudent and
reasonable man would not do.”

Blythe v Birmingham Waterworks (1856) 11 Exch 781 per Alderson B the factors which ordinarily regulate
conduct are:

“whether the act or omission in question is one which a reasonable person would recognize as posing an
unreasonable risk must be determined by balancing the magnitude of the risk in the light of the likelihood of
an accident happening, the possible seriousness of its consequences, against the difficulty, expense or
other disadvantage of desisting from the venture or taking a particular precaution.”

Wyong Council v Shirt (1980) 146 CLR 40 The plaintiff was an inexperienced water skier on a remote lake.
Wyong Council had dreged a channel of ddep water to allow boats to get from the edge. They had put up a
notice stating “Deep Water.” Upon seeing the notice, the plaintiff came off his skies, and as a result,
bumped his head on the rock bed and suffered severe injuries as a result. He sued in negligence for their
negligence in erecting the misleading sign. Mason J noted that foreseeability of risk and likelihood are two
different concepts, and foreseeability doesn’t necessarily relate to likelihood. It was held that a risk is
foreseeable as long as it is not “far-fetched or fanciful.” Whethere a reasonable person in the D’s position
would have foreseen a risk to the plaintiff or a class of persons in the P’s position. If so, the tribunal of fact
would ask what a reasonable person in the D’s position would do in response. The HC found that the jury’s

16
finding against the Council was open to them as “a risk of injury which is remote in the sense that it is
extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or
fanciful is real and therefore foreseeable.”

Nagle v Rottnest Island Authority (1993) 177 CLR 423 Nagle was injured when he dived off a partially
submerged rock ledge in the Basin, in Rottnest Island. His injuries were caused when he struck himself on
one of the rocks which were adjacent to the platform, and below the low water mark. Rottnest Island
Authority was was under a statutory duty to manage and control for the benefit of the public the public
reserve on the coast of the Island. That reserve adjoined the Basin. It promoted the Basin as a swimming
venue, and encouraged the public to use it for that and other purposes by installing, maintaining and
servicing various facilities on that part of the reserve which was immediately adjacent to the Basin. The HC
found on appeal that the injury in diving off the rock was a foreseeable risk, and that foolhardiness was not
relevant, and agreed with the trial judge, and found for the plaintiff.

H v Royal Alexandria Hospital (1990) Aust Torts Reports 81-000 The plaintiff was a haemophiliac child who
was given blood transfusions in March 1982 and September 1983. He contracted HIV as a result of one of
these transfusions, and contracted AIDS. He sued the hospital for negligence. However, it was initially
unknown that AIDS could be contracted through blood transfusions. It was held that the D was not
negligent in respect to the transfusion in 1982, as the risk could not bee foreseen in March 1982.

Calculus of Negligence

Likelihood

Bolton v Stone [1951] 1 All ER 1078 the plaintiff was hit by a cricket ball from the cricket ground across the
road from her house. It was 90 metres from the batsman to her house. The P’s neighbour testified that balls
had entered her backyard five to six times in over thirty years. Balls were rarely hit out of the ground. Lord
Reid held that “the test to be applied here, is whether the risk of damage to a person…was so small that a
reasonable man…from the point of view of safety would have thought it right to refrain from taking steps to
prevent the damage. It was found that the likelihood in this case was negligible, and the appeal failed.

Wagon Mound No 2 [1966] 2 All ER 709 The owners of two ships sued a charterer alleging that the loss of
their ships to fire was caused by the Defendant’s negligence in discharging large quantitities of furnace oil
into the harbour. The Privy council found that it was reasonably foreseeable that the oil spilt on the water
may catch fire. It was argued that the officers of the Wagon Mound would regard furnace oil as being very
difficult to ignite on water, and that they would have regarded it as a “possibility but one which would
become an actuality only in very exceptional circumstances“. The Privy Council held that Bolton v Stone did
not preclude negligence for all small risks. Lord Reid held that:

“A reasonable man would only neglect such a risk if he had some valid reason for doing so: eg, that it
would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of
eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity there can
be little doubt but that Bolton v Stone would have been decided differently. In their lordships’ judgment
Bolton v Stone did not alter the general principle that a person must be regarded as negligent if he does not
take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility
which would never influence the mind of a reasonable man. What that decision did was to recognise and

17
give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if
the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it
right to neglect it.”

Seriousness

Paris v Stepney Borough Council [1951] AC 367 The plaintiff lost his second eye as a piece of metal
entered his eye due to the defendant (his employer’s) negligence in failing to provide safety goggles. It was
held that “in considering…the precautions which an employer ought to take for the protection of his
workmen, it must…be right to take into account…the likelihood of an accident happening, and the gravity of
the consequences.” It was further held that there it is a duty of employers to take additional precautions
where they know of the gravity of the consequences to specific employees; where they have knowledge of
special circumstances which affect the gravity. It was held that by Lord McDermott that “what may happen
to the person is as important as the actions.” Thus, the risk and degree of injury are relevant factors in
determining whether a breach has occurred.

Utility of Conduct

Watt v Hertfordshire County Council [1954] 1 WLR 835 The Defendant was the employer of a fireman who
received an emergency call about a woman trapped under a heavy vehicle very close to the fire station. As
the special vehicle used to carry a heavy jack used for such purposes was out, the fireman loaded it onto a
normal fire truck. He had to in the course of getting to the scene, apply his brakes suddenly. The jack hit
the plaintiff, and the plaintiff sued the employer for negligence. The employer was found to be negligent at
first instance. The Court of Appeal found that they were not negligent and it was held that the utility of the
conduct must be considered, and balanced against the risk taken. It was held that “in measuring due care,
you must balance such a risk against the measures necessary to eliminate the risk…you must balance the
risk against the end to be achieved…the waving of life or limb justifies taking a considerable risk.”

Daborn v Bath Tramways [1946] 2 All ER 333 The defendant was driving a left-hand drive ambulance, and
had a sign which stated that it was a left-hand drive ambulance. It collided with a bus when turning right. It
was held that the utility of using the vehicle outweighed the risk.

Practical Alternatives

In looking at whether an alternative is practical, factors such as expense, convenience etc. of

implementation needs to be taken into account.

Caledonia Colliers v Speirs (1957) 97 CLR 202 The plaintiff’s husband was killed at a level crossing when
hit by a train carrying trucks which lost control and ran down a steep embankment. No measures such as
points on the line, which would stop derailed trains were taken. The escape of the trucks was reasonably
likely to occur and it was reasonably foreseeable that the P would be injured. It was held that a finding of
negligence was open to the jury. The D argued that installing the points in the line was not a practical
alternative as there would be inconvenience in slowing trains down, and a risk of derailment. The HC held
that the danger was such that it required drastic measures, and further that the D’s argument gave undue
weight to derailment.

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Vozza v Tooth (1964) 112 CLR 316 The plaintiff an employee of the defendant was injured when a bottle
burst when it was removed from the pasteuriser. He was provided with leather gloves to safeguard from
injury. However, these were too thin to prevent injury. The jury found that the employer had been negligent.
The HC reversed this decision on appeal as it was held that the P had not adduced sufficient evidence that
it would have been reasonable to install machine handling or practical to provide thicker gloves. In fact, it
was found that thicker gloves would have meant that the P could not handle the bottles. It is up to P to
show that alternatives are practical.

Nelson v John Lysaght (1975) 50 ALJR 104 The P slipped and injured themselves whilst carrying a heavy
coil of wire. It was held that the provision of non-slip shoes were insufficient safety measures. Measures put
in place to improve safety after the accident were accepted as evidence of reasonably practical measures
that could have been put in place to avert the accident.

Mercer v Comm for Road Transport (1936) 56 CLR 580 the P was injured when the D’s tram crashed, as
the driver had collapsed. The conductors had made every effort to stop the tram. The P argued that an
automatic stopping system was a reasonably practical alternative which could have been implemented.
These had been installed in all electric trains in Sydney, but not the trams. However, the defendant argued
that such a system was not in place in any other tramway. However, the HC held that a finding of
negligence was open to the jury, as general trade practice may fall short of the required standard of care.

Time to Assess Risk

Roe v Minister for Health [1954] 2 QB 66 Two plaintiffs who went to hospital for a minor operation were
given a spinal anaesthetic which had been stored in a container of phenoyl. They were paralysed waist
down due tot eh presence of phenoyl in the anaesthetic which had seeped through invisible cracks in the
glass container in which the anaesthetic was stored. It was held that the D hadn’t been negligent by the
standard of medical knowledge in 1940. The Court noted that the plaintiff’s situation was terrible, it wasn’t
possible to compensate under tort, and to do so would go against community standards.

Who is the Reasonable Person

Glasgow v Muir [1943] AC 448 Lord MacMillan held that legal liability is limited to actions which a
reasonable person of ordinary intelligence would contemplate. In dealing with the reasonable person, the
idiosyncracies of the defendant are excluded, and the reasonable person is free from over-apprehension
and over-confidence

Paptonakis v Aust Telecommunications Commission (1985) 156 CLR 7 Described the reasonable person
as the “hypothetical reasonable person on a hypothetical Bondi tram.” (Deane J)

Age

McHale v Watson (1966) 115 CLR 199 It was held in this case that a child is judged upon the standards of
a reasonable person of the same age and experience as the plaintiff

Physical and Intellectual Disability

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McHale v Watson (1966) 115 CLR 199 The Defendant was a boy of 12 who threw a metal spike towards a
wooden post, which hit a girl of 9. The plaintiff argued that the test should be one which determined the
standard of care in relation to the reasonable man. However, the HC found that childhood is not
idiosyncratic, and found that the trial judge had not misdirected the jury by saying that the liability of a
twelve year old is different to that of an adult. It was held that whilst abnormal/idiosyncratic characteristics
can’t be taken into account, that does not preclude a lack of foresight or capacity not special to himself, but
relevant to all in his station in life. It was held that youth is judged by the capacity or prudence of a person
of that age.

Adamson v Motor Vehicle Insurance Trust (1956) 58 WALR 56 The plaintiff was run over by a Mr B, who
was suffering from delusions, and believed that his workmates were trying to kill him, and that he had to
escape. He stole a vehicle and drove recklessly along the road. The Court found that on the facts, he was
not insane at the time of driving as he knew what he was doing, and knew it was wrong. Further, as a
matter of law, it was found that insanity is not a defence to tortious liability.

Plaintiff’s Knowledge of Defendant’s Competence, Skill or Disability

Cook v Cook (1986) 68 ALR 353 The plaintiff was an experienced driver, who invited the defendant, a
learner driver to drive with him. In the course of their driving, the defendant accelerated instead of
decelerating in trying to avoid a parked car. The HC held that whilst the D’s conduct should be judged
against the same objective test as other drivers in relation to users of the highway who were unaware of the
defendant’s inexperience, the standard of care owed to the plaintiff was one which is determined by judging
their conduct against that of a reasonable learner driver, as the P knew of the D’s inexperience. However, it
was found that the defendant’s negligence was so gross, that the plaintiff was successful.

Special Skills – Professional and Specialist Standards

Sidaway v Bethlehem Hospital [1984] 1 All ER 1018 The Bolam principle was used to determine the
standard of care required. This stated that a doctor is not negligent if he/she acts in accordance with
practice accepted by a responsible body of doctors. However, it was held that this test only applied to
actual procedures, and not advice given.

Rogers v Whittaker (1992) 175 CLR 479 The P was almost blind in one eye from age 9, and sought advice
from an ophthalmic surgeon with regards to it. The surgeon stated that appearance and sight would
improve if they had a particular operation. The operation was undertaken with due care and skill. However,
the P sued the surgeon for failure to disclose risks, as she developed sympathetic opthalmia, and lost sight
in her good eye. The P was successful at first instance. On appeal to the HC, it was held that a medical
practicioner that a medical practitioner has a duty to exercise due skill and care in all aspects of treatment
and advice. The standard of skill and care is that of an ordinary person who professes to have that skill. In
order to determine the standard, the evidence of peers will be taken into account, but is not conclusive. The
Court will decide the matter by giving paramount consideration to the fact that a person has the right to
make their own decisions about their lives. The factors used to determine the adequacy of the standard of
care are:

(i)     nature of treatment

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(ii)   patient’s desire for the information

(iii) the temperament and health of the patient

(iv) the general surrounding circumstances.

A medical practitioner has to warn the patient of a material risk about the procedure if it is one which a
reasonable patient in the P’s position is likely to give significance to, or if the practitioner is aware of the
particularities of the patient, and knows that the particular patient would attach significance to it, they have
to disclose it.

Proof of Negligence

Generally, the onus is on the plaintiff to prove on the balance of probabilities (BoP) that the D was in breach
of a duty of care.

In some circumstances , there is direct evidence of this, and in others, inferences need to be drawn. In
order to succeed, the P must prove that the inference is more probable than not. These inferences must be
drawn from proven facts.

Holloway v McFeeters (1956) 96 CLR 99 The Plaintiff’s husband was struck and killed y an unidentified
motor vehicle. There were no eye-witnesses. However, evidence from the anterior movements of the
deceased, and tyre marks on the roadway suggested that the deceased was struck whilst crossing the
road, along the centre of the road. It was held that inferences drawn from actual proven facts are just as
much evidence as the facts themselves. Further, it was held that sufficient evidence existed that inferences
could be drawn that it was more probable than not that the car was driven in a negligent manner and that
this caused the accident.

TNT v Brooks (1979) 23 ALR 945 The P’s husband was killed in a road accident. He was driving a loaded
semi trailer in a northerly direction when there was a collision between his truck, and another, travelling in
the opposite direction. Both drivers were killed, and there were no witnesses. Three possible scenarios
were possible on the facts:

(a)    the P’s H was driving on the wrong side of the road

(b)   the other truck was driving on the wrong side of the road

(c)    both were driving down the middle of the road.

The HC found that an inference could be drawn that it was more probable than not that the other vehicle
was on the wrong side of the road.

Res Ipsa Loquitor

The event or matter speaks for itself.

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Mummery v Irvings P/L (1956) 96 CLR 99 The P entered the D’s shed to buy timber, and saw the D’s
foreman working on a circular saw, and moved towards him, when he was hit by a flying piece of wood.
The trial judge had not left the question of negligence to the jury. It was held that this could be open to the
jury dependant upon whether the jury could draw inferences towards negligence as a result of res ipsa
loquitor. It was held that res ipsa loquitor is not a legal principle, but a “general index to those cases in
which mere proof of an occurrence…constitutes prima facie evidence of negligence.” Evidence was
adduced to partially explain the cause of the wood hitting the plaintiff as the evidence tended to establish
that the wood was thrown by the circular saw. The question wasn’t how the wood flew across the area, but
how it flew from the circular saw. However, the Court couldn’t find for the P as there was no evidence of the
circular saw etc, and further the P couldn’t rely on res ipsa loquitor, as some evidence was adduced.

Scott v London & St Katherine Docks Co [1865] All ER 158-9 It was held that “where the thing…is under
the management of D…and the accident is such that in the ordinary course of things does not happen if
those who have the management use proper care, it affords evidence, in the absence of explanation by the
D, that the accident arose from a want of care.” In this case, a bag of sugar fell on the P’s head, and injured
him. The D called no evidence and the Court found that if P could illustrate that the circumstances were
under D’s control, and that the accident would not have accrued except for the D’s negligence, then the
Court is able to find negligence. However, they don’t have to. This doctrine does not shift the onus of proof
from the P to the D. It remains with P. However, the D bears the evidentiary onus to adduce evidence if no
other explanation of the injury or accident is produced. Where there is no explanation, the jury may make a
finding for the P.

The Effect of the Doctrine

The effect of the doctrine, as held in Mummery v Irvings is that a finding of negligence MAY result. This isn’t
a legal principle that is to be strictly adhered to.

Causation

Causation in fact requires that once the plaintiff has demonstrated that the defendant was negligent, they
must further demonstrate that the negligence caused the P’s injury. Causation in law looks at the
remoteness of damage.

The ‘But For’ Test

This involves determining whether the injuries would have been suffered but for the defendant’s
negligence.

Barnett v Chelsea & Kensington Hospital Management Committee (1969) 1 QB 428 The P’s husband fell ill
after drinking some tea, and went to casualty to find that there was only a nurse, as the doctor had gone
home. The nurse called the doctor, who told him to go home & see his doctor. The husband died five hours
later from arsenic poisoning as there had been arsenic in the tea. The P sued the hospital and the doctor,
claiming that their negligence caused her husband’s death. The Court held that the doctor was negligent in
not coming into the hospital, but, the doctor’s negligene hadn’t caused the P’s husband’s death, and thus,

22
he was not liable. Evidence was adduced that even if he had attended, he would only have been able to
give an intravenous drip four hours later. Expert evidence suggested that his chances weren’t good. The
Plaintiff had failed to establish that her husband’s death resulted from D’s negligence, on the BofP. If the P
would have been injured even if the D hadn’t been negligent, then D’s negligent did not cause the death in
legal terms.

March v Stramare (1991) 171 CLR 448 The defendant had parked his truck in the middle of the road, with
his hazard and rear lights on. The plaintiff, as he was drunk, drove into the back of the truck. He sued for
negligence. It was found that the defendant was not liable on appeal to the Full Court. On appeal to the HC,
the trial judge’s decision was restored. The HC commented on the limitations of the ‘but for’ test where
there are multiple causes. They held that:

(i)     the ‘but for’ test has limited used

(ii)   it cannot be an exclusive criterion for causation.

(iii) It must be tempered by value judgements and policy considerations.

(iv) Common sense must be looked at too.

SRA of NSW v Wiegold (1991) 25 NSWLR 500 The plaintiff was employed by the D and was injured when
he fell down a railway embankment at night. He was no longer able to work after the accident, and was
provided with worker’s comp. He grew Indian hemp to provide sufficient money by selling marijuana. He
was arrested, convicted and imprisoned. He sued the defendant. The question was whether he would have
been imprisoned but for the D’s negligent. The trial judge held that the defendant was negligent. They held
that the ‘but for’ test was singularly inappropriate.

Chappel v Hart (1998) 156 ALR 517 The plaintiff’s oesophagus was injured during surgery without
negligence. This damaged her vocal cords and she partially lost her voice. She sued the doctor for
negligence in not letting her know of the risk. She argued that had she known, she would have put off the
surgery, and hired the best surgeon possible. The Court discussed the ‘but for’ test with regard to
determining whether the plaintiff would have not had the surgery. In some circumstances the ‘but for’ test
doesn’t work. For example, if it had been that the anaesthetic had gone wrong, where even if she knew of
the risks of the perforation, and had put the operation back, she would still be injured. However, as the
damage was due to the perforation, she was successful.

Increased Risk

M’Ghee v National Coal Board (1972) 3 All ER 1008 The plaintiff was employed to clean up brick film. He
sued the National Coal Board for their negligence in failing to provide showers to wash the dust off, which
caused severe dermatitis. The evidence could not demonstrate that it was more probable than not that the
failure to provide showers caused the dermatitis. However, it showed an increased risk. The HofL found the
employers liable. Wilberforce LJ held that whilst logically if there was only an increased risk, then this is not
the cause of the injury. However, it was held that on policy grounds, that an increased risk satisfies the
requirement of causation. It was held that where a breach of a duty creates a risk, and there is a disease,
then the party creating the risk should be held liable.

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Wilsher v Essex Area Health Authority (1988) AG 1974 M’Ghee was severely criticised in Wilsher v Essex
as the law requires proof of fault. Demonstrating an increased risk doesn’t satisfy the evidentiary burden to
show that the D’s actions cause the P’s injury. They suggested in M’Ghee had succeeded as both risk
factors were provided by the D. In the current fact situation, there was an innocent contributing factor, and
the defendant’s contributing factor, and the P failed, as they could only demonstrate increased risk, not that
the D had caused the injury.

M’Ghee discussed a “material increase of risk.” This was criticised in Wilsher v Essex as “the law requires
proof of fault causing damage.”

Bennett v Minister for Community Welfare (1992) 176 CLR 408 The plaintiff was a ward of the state who
was injured when trained in a detention center run by the D. The D acknowledged that P, as a ward of the
state was entitled to independent legal rights and advice. They had been negligent in providing this to him.
In 1976, when he was no longer a ward of the state, the P got his own independent advice, and was
advised that he could not recover for his injury (negligently). 1979, after getting further advice, he sued the
defendant for the loss of a right to sue, as his original action had become statute barred. The Minister
admitted the negligence, but argued that the negligence was a novus actus interveniens, and so, there was
no causal connection between the negligence and the damage. However, the HC rejected this argument,
holding that had the D fulfilled their duty, the P wouldn’t have had to obtain advice at a later date, and thus,
the negligence of the advice at the later date had no effect. Gaudron, on her own found for the P on the
basis of a M’Ghee style reasoning. She suggested that in the absence of evidence that the D’s breach had
no effect, the breach had no effect, the breach would be taken to have caused or materially contributed to
the injury or damage.

Multiple Sufficient Causes

Alternative Causes

What is the situation where the P’s injury would probably have occurred anyway? E.g. where the P has a
pre-existing condition, and the negligence accelerates it.

Holton v Berkshire Area Health A thirteen year old boy fell out of a tree, and injured his leg. The hospital
failed to treat it properly for five days. He would develop osteo-arthritis. The HofL held that where on the
BoP, the plaintiff would have developed the condition regardless of the D’s negligence, the D is not liable.

Von Hartman v Kirk Where the D accelerates death, the D is liable, but only pays damages for the period of
acceleration.

Additional Causes

Where two separate individual causes combine to cause a loss, both the Ds are liable as concurrent tort
feasors, and both will contribute to the P’s loss.

Performance Cars Ltd v Abraham (1962) 1 QB 33 The D drove into the P’s Rolls Royce. A fortnight ago,
another car had hit the P’s car. There was some overlap in repairs, and it already needed respraying due to
the first accident. The Court held that the second D did not have it flowing to them that they had to pay for

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the damage caused by the first accident. The fact that the first tortfeasor didn’t want to take on his share of
the costs shouldn’t affect the second tortfeasor.

Baker v Willoughby [1970] AC 476 The P suffered serious injury to his ankle. He suffered pain, loss of
amenity etc. In a hold up three years later, in a hold up, he was shot in the ankle, and it was so serious that
a his leg had to be amputated. The respondent (the first tortfeasor) argued that he shouldn’t be liable for
any loss, as there was no longer a leg. The appellant argued that the injury hadn’t shortened his life, and so
there was still damage. The Court held that whilst the Court normally takes into account the vicissitudes of
life in calculating damages, this is not applicable in the current situation to suggest that there is no loss. The
Court held that at best, damages could be reduced for pain and suffering, as there is no longer a leg, and
so, the P can’t argue pain and suffering on the basis of the leg. The Court held that the D was liable for all
loss caused by him except the additional loss caused by the thief. That is, the D couldn’t rely on the second
accident to reduce liability for the loss ‘swallowed up’ in the second accident. It was held that damages
don’t compensate for the injury itself, but for the loss suffered as a result. The second tortfeasor is only
liable for the additional loss only, as you must take the victim as you find them.

Faulkner v Keffalinos (1970) 45 ALJR 80 The D injured his leg in as a result of the original tortfeasor’s
negligence. He was further injured in a second accident, causing him to lose all earning capacity. It was
unsure who the second tortfeasor was. The Court held that where the second incident is a non-tortious act,
the Court will take it into account as one of the “vicissitudes of life.” It was held that the D could rely on the
second accident toreduce damages on the “vicissitudes of life” principle. Thus, the first tortfeasor was only
liable for the loss of earning capacity up until the second accident.

Intervening Causation

Chapman v Hearse (1961) 106 CLR 112 The question was whether Hearse’s act in running over Dr Cherry
was a novus actus which broke the chain of causation between Chapman’s actions and Dr Cherry’s death.
It was held that as Chapman’s negligence had contributed to the death, and this was the sort of situation
which was foreseeable, Hearse’s actions weren’t a novus actus and that both were partly liable.

Mahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 An employee was injured at work, and he
sued the employer. The employer argued that Dr Mahoney’s negligent treatment had caused, or
contributed to the employee’s injuries. The Court held that exacerbation of injury by medical treatment is a
reasonably foreseeable where an injury is negligently caused. IT was held that negligent treatment doesn’t
necessarily break the causal connection. However, where professional and reliable treatment is ordinarily
available, and the P’s injury is exacerbated, then, the doctor providing the medical services is liable for the
degree of exacerbation.

March v Stramare (1991) 171 CLR 506 The defendant had parked his car in the middle of the roak, and the
P, a drunk driver, drove into his tail. The question was whether the drunk driver’s dribing the car into the
back of the truck break the causal chai? The Courts held that the P’s negligence didn’t break the causal
connection, as where the D’s wrongful conduct is the very reason for the P’s or the third party’s negligent
action, then the causal connection is not broken.

Remoteness of Damage

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Re Polemis & Furness Withy & Co Ltd (1921) 3 KB 560 It was held that if the damage is too remote, the D
is not liable. It is known as the “Direct Consequences Test.”

Universe Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388
Prior to the Wagon Mound looked at whether the injury or damage were a direct consequence of the D’s
act. It was criticised due to the burden placed on the D. The employees of the charterers of the ship
allowed a large quantity of oil to be discharged into Sydney Harbour. It spread across a large part of the
bay and congealed on a wharf and around a ship. The plaintiff’s workmen gave instructions that no welding
work should be carried out. The manager told them to continue. They continued until the wharf and the ship
caught alight. The Privy Council held that Polemis is no longer good law, and that liability is imposed where
the consequences are reasonably foreseeable. It was held that the d was not liable, as on the evidence, the
damage was not reasonably foreseeable.

Universe Tankship (UK) v Miller Steamship Co Pty Ltd (The Wagonmound (No 2)) [1967] 1 AC 617 per
Lord Reid “reasonably foreseeable” means “A real risk…would occur to the mind of the reasonable man…
which he would not brush aside as far-fetched or fanciful.” The actions were brought by the owners of two
ships sued a charterer alleging that the loss of their ships to fire was caused by the Defendant’s negligence
in discharging large quantitities of furnace oil into the harbour. The Privy council found that it was
reasonably foreseeable that the oil spilt on the water may catch fire. It was argued that the officers of the
Wagon Mound would regard furnace oil as being very difficult to ignite on water, and that they would have
regarded it as a “possibility but one which would become an actuality only in very exceptional
circumstances“. It was held that the D is liable for damage caused not only by the D, but that which fell
within by the class or category of damage which is reasonably foreseeable. If the officers had seen the
damage as a possibility, which could only become an actuality in exceptional circumstances. The
defendant’s in Wagon Mound 2 were held liable.

Hughes v Lord Advocate (1963) AC 837 It was held that it does not matter if the exact circumstances are
not foreseen, as long as harm of the kind could be foreseen. That is, it is not required that the exact manner
be foreseen, as long as the harm could be foreseen. Workers working on a dark street went on a break,
leaving an open manhole. They had surrounded it by a canvas tent, and a ladder to get in. There were red
paraffin lamps around it. Two young boys went in, and one of the lamps were knocked over, and there was
an explosion. The younger boy fell into the manhole as a result, and suffered severe burns. The HofL held
that the D owed a duty and breached it, and although the injuries of a different degree weren’t foreseeable,
however, something of the kind was foreseeable. Whilst the manner was unforeseeable, the harm could
have been foreseeable.

Mt Isa Mines v Pusey (1970) 125 CLR 383 The HC held that a mental disorder of some kind was
reasonably foreseeable as a result of their negligence. The degree of that disorder need not be foreseen.
The HC held that what is required is:

–     not foresight of the particular course of events

–     only some harm of a like kind.

–     The “comfortable latitudinarian” doctrine – this is a broad test.

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Egg Shell Skull Cases

Enunciates the concept of  take the plaintiff as you find them. The extent of harm need not be foreseeable
as long as the KIND of harm is foreseeable.

Dulieu v White (1901) 2 KB 405      The plaintiff may suffer from some pre-existing weakness or the
defendant’s negligent act may cause injury resulting in some susceptibility to further illness or injury

Smith v Leech Brian & Co (1964) 1 QB 518 The plaintiff was a worker and he got burnt and this enhanced
cancer.  As it was reasonably foreseeable that there would be a burn, responsibility extends to the fatal
cancer which developed from an unusual pre-malignant condition of the victim.

Robertson v Post Office (1974) 2 All ER 737 The plaintiff suffered brain damage after getting a tenus shot
for graze and it was reasonably foreseeable that the medical treatment would go wrong and therefore the D
is liable for damage.

Defences

The most common defence argued is that the defendant did not breach the duty. Whether the duty has
been breached is decided by a tribunal of fact. Sometimes, it is argued that no duty was owed.

Contributory Negligence

The historical position at common law was that it was a complete defence.

Butterfield v Forrester (1809) 103 ER 926 It was held that if the D could establish that the P was guilty of a
failure to take care of his or her safety, then, the D is not held to be liable.

Davies v Mann 152 ER 588  The situation espoused in Butterfield was modified by the “last opportunity
rule.” This stated that whoever had the last opportunity to avoid the accident would be liable.

This rule was further modified in Alford v Magee (1952) 85 CLR 437 The HC fiddled with the cases and the
applicable cases, and stated that where the D had a real opportunity to avoid the accident, they should be
liable. If the D’s actions were later in time, the D would be liable. Where D had an advantage, the D is
liable.

All these rules looked at laying the blame on either party’s shoulders, there was no notion of apportionment.

Thus, s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 was enacted, which means that
contributory negligence is no longer strictly a defence, but a plea for the reduction of damages. The act is a
cornucopia of tort reforms in NSW.

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s 10 states: “where a person suffers damage…partly of his own fault, and partly the fault of any other
person…a claim…shall not be defeated, but the damages recoverable…shall be reduced to such extent as
the court thinks just & equitable, having regard to the claimants share in the responsibility of damage.

Apportionment of responsibility is a question of fact. “damage” is defined to include any loss of life and
personal injury. “Fault” is defined as “negligence or other act or omission which gives rise to a liability in
tort.”

The apportionment of liability is measured in terms of percentage.

Pennington v Norris (1956) 96 CLR 10 The P was run over by the D on a dark, wet night. He had had a few
drinks too. The Tasmanian Supreme Court held that the P’s damages would be reduced by 50% due to
contributory negligence. On appeal to the HC, it was held that the damages would only be reduced by 20%.
The HC held that it must be a “just and equitable” apportionment of responsibility between P&D.

Generally, in NSW, a 30% reduction is large, 25% still quite large, and a 15-20% reduction more likely.

Culpability means the “degree of departure from the standard of care of the reasonable man.” The act gives
wide discretion to the tribunal of fact.

Froom v Butcher (1975) 3 All ER 520 It was held that negligence depends on the breach  of a duty of care,
but contributory negligence doesn’t. The P is guilty of contributory negligence if he ought reasonably have
foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself. It was a reduction in
damages for the failure of the P to wear a seatbelt.

Lord Denning stated that where the failure to take care for one’s own safety made all the difference, he
would apportion a 25% reduction, where there is a significant contribution, he’d apportion 15%. (In Froom v
Butcher, however, this is in no way binding, just interesting).

Davies v Swan Motor Co (1949) 2 KB 291 For contributory negligence, there is no requirement that P owe
a DoC to anyone, just that they failed to take reasonable care for their own safety.

There is further a question as to whether there is a causal link between the P’s loss and their negligence. It
must be foreseeable.

Jones v Livox Quarries (1952) 2 QB 608 The P was riding a towbar on the back of a truck. Any reasonable
person would think it foreseeable that they would fal off or that another vehicle could run into the back of
their truck. It was held that the P is guilty of contributory negligence, as he should have foreseen that
standing on the back of the truck would lead to injury. He had been injured when someone ran into the
back of the truck.

Gent-Diver v Neville (1953) QSR 1 The P was a pillion passenger on a motorbike. He knew that the front
light was defective. The collision was due to the fact that the driver was driving on the wrong side of the
road. It wasn’t due to the fact that the headlight wasn’t on, and so there was no causal link, and thus, no
reduction. It was held that there was no contributory negligence, because although the P knew the lights

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were defective, the accident was not caused by defective lights, but by the D was on the wrong side of the
road.

The standard of care applicable to the P is reasonableness and the calculus of negligence is applicable.

Caterson v Comm for Railway (1973) 128 CLR 99 The P was a man who lived in the country seeing a
friend off at the station. HE carried his baggage onto the train and it moved off. He had left his 14 y.o. son
at the station. The next station was 130 km. The P’s home was 80 ks away. The P jumped off the moving
train, and was injured. He sued the D in negligence for not warning him that the train was moving off. The
question of contributory negligence arose. The Court held that “where the P has been so placed that they
can only escape by taking a risk, the question of reasonableness is weight between the inconvenience
caused, and the risk taken.” It was held that  the P was not contributorily negligent.

The risk taken by the P is considered in light of the situation of risk created by the Defendant ( McLean v
Tedman (1984) 155 CLR 306) Plaintiffs are judged quite leniently, as the plaintiff’s conduct is judged in light
of the situation created by the Defendant.

McLean v Tedman (1984) 155 CLR 306 The P was a garbo, who was crossing the road when Brambles
(one of the Ds) overtook the garbage truck, and ran over him. The garbo would run back & forth, and
emptying the bins on either side. The plaintiff sues both the driver, and his own employer for negligence.
The employer and the driver argue contributory negligence on the part of the plaintiff. The employer argues
that the P had been instructed not to carry out the work in this way, but to travel up a street, emptying all
bins on one side, then emptying the bins on the other. The D argued that the P was negligent in not taking
a proper lookout for his own safety. However, the HC held that as the employer knew that all the garbos
didn’t adhere to the instructions given, and the employer did nothing about this, they were negligent in
allowing an unsafe system of work, and the driver, by overtaking at an unsafe speed created the dangerous
situation, and thus, the P was not contributorily negligent.

Volenti Non Fit Injuria

Where a plaintiff voluntarily assumes the risk, this is a complete defence to a claim of negligence. Where a
D can show that the P voluntarily assumed the risk, the D cannot be liable. However, the defence of volenti
cannot be pleaded in motor vehicle or work accidents due to s 76 of the Motor Accidents Act 1988 and s
151o of the Workers Compensation Act 1987.

In order to show volenti the D has to prove that:

1        the P knew of the facts constituting danger (knew the risk)

2        fully appreciated the danger inherent in those facts

3        fully accepted the risk of injury.

American Cigarette Co (overseas) Pty Ltd (No 3) (1987) VR 289 The P was a smoker who contracted lung
cancer who sued in negligence for the D’s failure to warn of the risk of contracting lung cancer. The D
brought a defence of volenti, stating that the P knew or ought to have known the risks of smoking. The P

29
applied to strike out the defence. The Courts held that constructive knowledge was not acceptable to
constitute a defence of volenti. It was held that P’s knowledge must have been express, and that actual,
rather than constructive knowledge was required.

Imperial Chemical Industries v Shatwell [1965] AC 656 The HofL held that the general rule is that voluntary
assumption of risk will NOT defeat a claim of an employee against an employer.

Insurance Commissioner v Joyce (1948) 77 CLR 39 Latham CJ held that where the P is a passenger in a
car of a drunken driver, the P should fail on any one of the following three grounds:

No breach of duty to a willing passenger

P was contributorily negligent in getting into the car.

The P voluntarily assumed the risk.

Roggenkamp v Bennet (1950) 80 CLR 292 The P was FULLY aware of the D’s drunkenness and P
accepted the risk. Whether this is so is a question of fact, and can be inferred from the P’sbehaviour. As a
result of the above, it was held that the D had a defence of volenti and P couldn’t bring an action.

Rootes v Shelton (1967) 116 CLR 383 The P was a very good water skier who was performing a cross-
over with another skier. This was also known as “Russian Roulette.” The P was injured while performing
the cross-over, as the driver of the speed boat was driving too close to another craft, and he collided with it.
The D argued volenti. However, the Court held that the P had assumed the risks involved in the “Russian
Roulette” manoeuvre, but not that of the negligent driving of the speed boat driver. The P’s action was
successful. It was held that the P may accept inherent risks involved with the sport, but not non-inherent
risks, or the risk of negligence outside the sport.

Kent v Scattini (Full Ct of WASC) The P was a sixteen y.o. who was sitting on the steps of the P.O. when
they were sprayed by other kids with water. The P & her friends armed with similar equipment took after the
other car, and were travelling at 80km/hr, when the car failed to take a bend, and the P was injured. She
sued the driver of the car. The D argued volenti. The Court held that she had only assumed risk in regard to
the spraying of water, and not in regard to the D’s negligent driving, and thus, the P was successful. It was
held that P is only barred from recovery for losses which are caused by the result of a known and accepted
risk.

Illegality

This is referred to as a defence, but is usually used to deny that a duty of care existed.

Henwood v Municipal Tramsways Trust (Sth Aust) (1938) 60 CLR 438 The P was the mother of the
deceased who was killed when leaning out the window to vomit. The tram carriages were too wide, and
went very close to the staunchons. The deceased was killed when he hit his head on one, whilst vomiting.
The D was aware of previous serious accidents, and hadn’t warned people, except to put up a sign to say

30
that leaning out of tram windows is prohibited. The P sued the trust. The trust argued that the son had
committed an illegal act, and thus, they weren’t liable. On appeal to the HC, McTiernan and Dixon JJ held
that one must look at the purpose of the law which the P has contravened. If it is to disentitlte P, then, the D
is absolved of liability. If not, the D is still liable.

Jackson v Harrison Jacobs J held that “a legal duty… presupposes that a tribunal of fact can properly
establish a standard of care…if the courts decline to permit the establishment of an appropriate standard of
care then it cannot be said that there is a duty of care.”

Gala v Preston (1991) 172 CLR 243 Four youths stole a car, and went for a joyride, when they met with an
accident. The P (one of the youths) sued the D (the driver of the car) in negligence. The question was
whether the illegal act deprived him of his ability to sue. Mason CJ, Deane, Gaudron and McHugh JJ held
that whilst illegality doesn’t automatically deprive the P of a right to sue, where they are in a joint illegal
enterprise, it is not feasible to determine the appropriate standard of care, and thus, no duty arises.

Negligence – Particular Duty Areas

Product Liability

Donoghue v Stevenson [1932] AC 262 imposed a duty of care that “a manufacturer of products…owes a
duty to the consumer to take reasonable care.”

Junior Books v Veitchi held that “manufacturer” is to be broadly understood. Haseldine v Daw holds
repairers liable.

O’Dwyer v Leo Buring [1966] WAR 67 imposes liability for the negligent design of a product. Adelaide
Chemical & Fertiliser Co v Carlyle (1940) 64 CLR 514 imposes liability for the negligent marketing of a
product. Norton Aust Pty Ltd v Streets Icecream Pty Ltd (1969) 120 CLR 635 imposed liability for the failure
to warn of dangers of proper use.

Grant v Australian Knitting Mills [1936] AC 85 The defendants tried to distinguish this case from D v S as
the underwear was easy to inspect. However, as the excess of sulphates in the underwear was latent, no
reasonable inspection would have made it discoverable.

Running alongside common law liability are statutory provisions which impose liability.

SOGA 1923 whilst it only applies to contracts for the sale of goods implies warranties into contracts that the
goods must:

Have fitness of purpose, Be of merchantable quality and Cannot be excluded.

However, it is of limited use as the doctrine of privity of contract means that the ability to bring an action is
restricted.

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Part V Div 2A of the TPA and more accurately, s 74B of the TPA gives consumers or persons acquiring title
through or under a consumer can bring an action against a manufacturer in respect of goods unsuitable for
the purpose. s 74C allows for an action in respect of false description of goods, s 74D for goods of
unmerchantable quality, s74E for goods not corresponding with a sample, and s 74K prohibits the exclusion
or modification of this division.

Under s 74 A (3) and (4) manufacturer is defined broadly, and includes a corporation which: allows its
name or brand on goods, holds itself out as a manufacturer and is an importer, and the manufacturer has
no Australian place of business.

A consumer is defined as a person acquires goods where: the price does not exceed the prescribed
amount. (was $40 000) or, where the price was greater, but the goods were of a kind ordinarily acquired for
personal, domestic or household use.

Due to constitutional limitations, the TPA only applies to corporations. However, the FTA applies where the
manufacturer isn’t a corporation

Part VA of the TPA, enacted in 1992 imposes liability upon manufacturers and importers of defective goods
and applies to goods :if their safety is not such as persons generally are entitled to expect.” (s 75A)

A corporation supplying such goods is liable for damages to a person, where the person is injured or killed.
(s 75AD). The remedy for other persons who suffer consequential losses is found under s 75 AE. The
remedy for damage to personal, domestic or household goods is found under s 75 AF. Remedy where land
or buildings are damaged is found under s 75 AG.  s75AK provides the defences, s 75 AN deals with
contributory negligence, and s 75AQ stipulates a three year time limit.

Under the TPA, a P doesn’t have to prove the existence of either a DoC or negligence. So, where possible,
a P would be best advised to plead two causes of action, one in tort, and one under the TPA.

However, it is important to keep in mind the effect of Wakim on cross-vesting legislation.

Phillip Morris Inc v Adam Brown Male Fashion Pty Ltd (1981) 148 CLR 457 accrued jurisdiction means that
a court, any court, apart from those which have their jurisdiction specifically specified is allowed to hear and
determine other matters to properly hear the matter before them.

Abnormal Plaintiffs

Levi v Colgate-Palmolive (1941) 41 SR (NSW) 48 Mrs Levi sued Colgate as she contracted a very severe
dermatological condition due to using free samples provided by the defendant. The HC held that as her
reaction was very, very rare, she was so unusual that she was an unforeseeable plaintiff. As the bath salts
were harmless to everyone else, she was unforeseeable, and owed no duty of care. She didn’t succeed on
the basis of the egg-shell skull cases, as there the Ps were injured just like everybody else, just to a much
greater degree. It was held that “the bath salts supplied to P were innocuous to normal persons…the skin
irritation which she suffered…was attributable exclusively to hypersensitiveness.”

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Haley v London Electricity Board [1965] AC 778 The P, a blind man, was injured, when he fell into a ditch
dug by the LEB, as they had not provided a barrier which was sufficiently high for him to detect it with his
cane. It was held that the P was not unforeseeable, as it was foreseeable that a blind person would walk
along the pavement, and could be injured if proper safety measures were not undertaken. Here it was held
that D “ought to anticipate the presence of such persons within the scope and hazard of their operations.”

The Unborn Child

Watt v Rama [1972] VR 353 The P was a woman who suffered severe brain damage due to an accident
which her mother was involved in due to the D’s negligence. The D argued that the P couldn’t recover, as
an unborn child has no legal rights. However, the Court held that the rights of the unborn child are potential
rights, which crystallize when it is born.

Lynch v Lynch (1991) 25 NSWLR 491 A child sued a mother for negligence in causing injuries when she
was in her womb due to a motor vehicle accident. The child was successful, as it was found that it was
owed a duty of care. However, the Court restricted the application of such a duty strictly to the
circumstances of the case, as there is a very low threshold which needs to be crossed to establish a duty of
care in motor vehicle accidents.

Mackay v Essex Health Authority [1982] QB 1166 The Ps sued a doctor and a pathological lab on the basis
that they were negligent in failing to properly conduct tests to determine whether the mother had rubella.
The mother wasn’t treated, or warned of the dangers of continuing with the pregnancy. The child was born
with severe disabilities. The Ps were mother & child. The mother argued that she couldn’t terminate the
pregnancy as she didn’t know, caused by the Ds’ negligence. The child’s claim was that their negligence
caused her to be born. An interlocutory application by the Ds was to strike out both claims. However, it was
held that the mother’s claim would be allowed, but the child’s claim would be struck out. The Court of
Appeal agreed, holding that the child did not have a cause of action.

The child’s claim was one of wrongful life, and the mother’s one of wrongful birth. It has been held that
whilst a cause of action exists for wrongful birth, no such action exists for wrongful life.

This is the liability of non-occupiers to visitors or occupiers of negligently constructed buildings. Builders,
developers, engineers, architects and local government all owe a duty of care to injured persons. But, what
of the situation where there is no physical injury, only purely economic loss (that, is the cost of repair of
defective structures).

Economic Loss

Dutton v Bognor Regis UBC [1972] 1 QB 373 It was held that the council owed a DoC to the P, and that it
was liable for a failure to properly inspect faulty foundation. Lord Denning talked of a “material loss” – the
cost of repair to avert threatened injury.

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Anns v Merton London Borough Council [1978] AC 728 It was held that the council owed a DoC in respect
of negligently failing to properly inspect foundations. The damage was referred to as “material.” This case
relied upon Dutton. However, since this case, the HofL has declined to follow Anns and overruled Dutton.

Murphy v Brentwood District Council [1991] AC 398 It was held that the council was not liable in relation to
faulty foundations, as there was no DoC, as the loss was purely economic.

Sutherland Shire Council v Heyman (1985) 157 CLR 424 The HC held that the DoC of a statutority
authority is dependant on the reasonable reliance of the P on D. The P’s loss was economic.

Armidale Shire Council v Finlayson where the P was successful against the council because of reliance,
and notwithstanding the fact that the loss was purely economic.

Builders

Builders are clearly liable where an injury is caused by an undiscovered defect on ordinary negligence
principles. (Murphy v Brentwood [1991] AC 398 ). But of the situation where the loss is purely economic?

Bryan v Maloney (1995) Aust Torts Reps 81-320 The P was the third owner of a house, seven years after
construction. There was extensive cracking due to the builder’s negligence in laying faulty footings. The
majority (Mason CJ, Deane, Dawson JJ) held that:

P’s loss was purely economic.

The DoC was dependant upon proximity and various factors of justice and policy which were relevant.
These were:

–     the negligent failure by D to carry out a fundamental requirement of the originial contract to build could
give rise to a DoC in tort to a third party.

–     (Policy) The question of indeterminacy is irrelevant as only the P is affected by D’s negligence.

–     (Policy) The purchase of a home is often the most important commercial transaction a P would ever
make, and the D is much better able to avoid, evaluate, and safeguard against a latent defect.

–     (Policy) It avoids the anomalous situation where the D is liable if personal injury flowed from the
negligent conduct, but not for economic loss incurred to prevent the same.

–     There was an assumption of responsibility by D, and a reliance by P.

Architects

Voli v Inglewood Shire Council (1963) 100 CLR 74 The P was injured when a stage collapsed due to the
insufficiency of the joists. The architect was held to be liable for their negligent failure to specify proper

34
joists. The professional is bound “to exercise due skill, care and diligence…not an extraordinary degree of
skill…but…the competence and skill usual among architects.”

Councils

Sutherland Shire Council v Heyman (1985) 157 CLR 424 The existence of a DoC is dependant upon
reliance, and the nature of damage is relevant (purely economic loss). Note, Brennan J dissenting.

Nervous Shock

The Nature of Nervous Shock

Jaensch v Coffey (1984) 155 CLR 549 per Brennan J it is the “sudden sensory perception – that is by
seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of the
phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness.”

Mt Isa Mines v Pusey (1970) 125 CLR 383 at 394 per Windeyer J, “sorrow does not sound in damages…it
is…today a known medical fact that severe emotional distress can be the starting point of a lasting disorder
of the mind.” This is because, damages are the gist of an action in negligence, and thus, something more
lasting than mere sorrow is required to allow recovery.

Swan v Williams (1987) 9 NSWLR 172 The P was diagnosed of suffering an abnormal grief reaction.
Samuels J held that an abnormal grief reaction was not a psychiatric illness, and so there was no claim in
nervous shock. However, Priestlye and McHugh JJ held that it was sufficient to ground a claim.

Andrewatha v Andrewatha (1987) 44 SASR 1 The P was a man who cared for his wife who had been
severely disabled in a car accident for a prolonged period of time. He suffered a depression as a result, and
sued in negligence for nervous shock. However, he was unsuccessful, as the Court held that the
depressive state was a result of the prolonged care, rather than the shock of the accident. That is, the
Court held that the illness must result from a sudden trauma or shock. Thus, his depressive state was
resultant from the prolonged stress of caring for his disabled wife, was not nervous shock.

Recovery for Nervous Shock

Victorian Railways v Coultas (1888) 13 App Cas 222 (PC) The P was a passenger in a carriage driven by
her husband. They crossed a level crossing as a train approached. The P suffered a terrible shock and
suffered a miscarriage. The Court accepted that the reason for this was because an employee had
forgotten to draw the boom gates. The Privy Council held that in the absence of physical injury, recovery for
nervous shock was barred.

This situation gradually changed, and in the 20 th Century, nervous shock was actionable regardless of
physical injury.

Dulieu v White [1901] 2 KB 669 allowed for nervous shock for the fear of the plaintiff’s own safety.

35
Hambrook v Stokes [1925] 1 KB 141 it was held that recovery for nervous shock for the fear for the safety
of a close relative.

Chester v Waverley (1939) 62 CLR 1 The P was a mother of a small child who had gone missing.
Employees had dug a deep trench, which had filled with water. The child had fallen in, and had drowned.
She was at the scene when the trench was dredged, and she saw the body. She brought an action in
negligence for the nervous shock she suffered. However, the HC held that it was unforeseeable that the
mother would suffer a psychiatric illness in such circumstances.

Dooley v Cammel Laird [1951] 1 Lloyds Rep 271 A load fell from a crane the P was operating, due to the
negligence of other persons. He was aware that many of his workmates were working directly under the
crane. He was certain that he had killed many of his workmates, and suffered a severe psychiatric illness.
No-one actually died in the accident. However, he was successful in suing his employer for nervous shock.

Mt Isa Mines v Pusey (1970) 125 CLR 383 Is another example of nervous shock resulting from the fear of
safety of others.

Chadwick v British Transport Commission (1967) 2 All ER 945 The P lived near a railway line, and there
was a dreadful train crash, in which many were killed. The P heard the crash, and ran from his home to
provide aid. He crawled into the wreckage to try and rescue people. Whilst he didn’t effect a rescue, he
talked to people and kept the calm whilst they waited to be cut free. He wasn’t himself injured, but suffered
nervous shock. He was successful in his action against the Transport Commission.

Proximity Issues and Primary/Secondary Victims

Jaensch v Coffey (1984) 155 CLR 549 The P hadn’t been at the scene of the accident, and she first knew
of the accident when she was informed by police. She rushed to the hospital, and saw her husband in the
ICU, and had been told by hospital staff to prepare for the worst. She thought that he would die, and
suffered various psychiatric difficulties as a result. She sued the negligent driver to recover for nervous
shock. The HC held that the accident and its aftermath were sufficient. It was held that the accident and its
aftermath extended to the hospital “up to and including immediate post accident treatment.” The Court
looked at these issues under the banner of proximity. The Courts held that she could recover as she was
reasonably foreseeable, and because she was involved in the aftermath.

Alcock v Chief Constable [1992] 1 AC 310 This action rose out of the Hillsborough disaster where there
was a stampede after a soccer semi-final. The police had negligently allowed 1 of the stands and the area
in front of it to become grossly overcrowded. The pen collapsed and many were crushed to death. There
were 95 killed, and 400 injured as a result. People elsewhere in the ground, and those at home saw it, as
the game had been televised live. This was a test case brought for 16 Ps, all of whom had seen what had
happened, and knew people in the stadium. Some Ps were in the stadium, knowing they had friends  and
relatives there. Others had seen it on TV, and knew of people in the stadium. None of the Ps succeeded.
Whilst this was decided under the banner of proximity, there are relevant principles still to be extracted.
Lord Oliver held that primary victims “involved either mediately or immediately as a participant.” A
secondary victim was “no more than the passive and unwilling witness of injury caused to others.” He

36
emphasized that this distinction was merely a label, and not a rule of law. It was held that all the Ps in this
case were secondary victims. In order for a secondary victim to succeed in a nervous shock, it was held
that the following criteria had to be fulfilled:

–     the P must have close ties of love and affection to the victim. This will be presumed in some situations
(e.g. spouses, parent/child) and will have to be proven by evidence in other cases.

–     The P must have been present at the accident, or its aftermath, and witnessed it through the p’s own
unaided senses.

–     The psychiatric injury must have been caused by direct perception of the accident or its immediate
aftermath.

The HofL held that the duty did not extend to those who saw the accident on TV or to the morgue
afterwards. It was held that there was “no pressing policy need” to extend recovery as there is “no logical
stopping point…where the elements of immediacy, closeness of time and space and direct visual or aural
perception are absent.”

White & Ors v the Chief Constable of South Yorkshire H of Lords 3.12.1998 The police brought an action
for nervous shock from the events of Hillsborough. The H of L held that the police were not rescuers, but
gave assistance to the injured. The police were never in physical danger themselves. Further, it was held
that they weren’t rescuers, as they were doing their jobs. Thus, they were unsuccessful on this ground.
They further argued that the police were employees, and therefore they were ‘primary victims’ because of
the duty owed to them by their employer, but the ordinary principles for the recovery for nervous shock still
applies. That is, Alcock control mechanisms, and thus, they did not succeed. Further, two policy grounds
were enunciated to deny liability and these were firstly, a question of whether the police should recover
where the victims of the deceased did not, and secondly the risk of a wide scope of potential liability for
psychiatric harm.

Coates & Anor v GIO of NSW (1995) 36 NSWLR 1 Kirby P held that recovery for nervous shock is not
precluded merely by the fact that the deceased’s children were not in the sight or hearing of the accident or
its aftermath. He held that the law should recognise that “it is…the direct emotional involvement of a P in an
accident” that is relevant to nervous shock.

The factors relevant to a DoC in Australia for nervous shock today are:

–     reasonable foreseeability of nervous shock injury

–     recognised psychological illness

–     sudden shock

–     involvement in an accident or aftermath.

–     Close ties of love and affection to victim(s).

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Morgan v Tame [2000] NSWCA 121 12 May 2000 The Respondent was involved in a car accident. In the
course of investigating the accident, a “P4 Report” was completed by the Police. The P4 Report had been
incorrectly filled out and showed the Respondent as having a blood-alcohol reading of 0.14. That was the
reading of the other driver involved in the accident. The correct reading for the Respondent was nil. The
Respondent was informed of the error by her solicitor. Subsequently she was told by the Police that the
entry was a mistake and that it had been corrected. Notwithstanding that the Respondent was informed that
all parties knew that the P4 Report had been filled out incorrectly, she developed a psychotic depressive
illness. It was held that it was not reasonably foreseeable that a person would develop a psychiatric illness
due to an error in filling out an accident form.

Annets The P was not successful, as there was no sudden shock, and had not been involved in the
accident or the aftermath.

However, the above two cases have been granted special leave to appeal to the HC, so this is not settled
law.

Quayle v State of New South Wales [1995] Aust Torts Reports 81-367 The Ps were the mother and two
brothers of an aboriginal man who hung himself in prison. He had been suffering from severe depression,
and alcohol withdrawal symptoms, and thus, the brothers took him to Broken Hill Hospital. The hospital
handed him over to the police, who unlawfully detained him, at which time he hung himself. A police officer
ran into a brother, and told him that his brother had hung himself. The police asked the other brother to
identify the body on a public street, as they were taking him to the hospital morgue. All plaintiffs were
successful, as a single judge of the District Court held that third party communication should be
compensable.

s 4 of  The Law Reform (Miscellaneous Provisions) Act 1944 provides liability…(for) injury caused…by an
act neglect or default by which a…person is killed injured or put in peril shall extend to…nervous shock
sustained by…

(a) a parent or the husband or wife of the person killed etc….

(b) any other member of the family where such a person was killed (etc) …within the sight or hearing of
such member of the family.”

Note Kirby P’s judgment in Coates v GIO. This legislation does not deny a P the right to rely on the c. law,
but the question has been left open by the HC in Jaensch v Coffey.

Negligent Misstatement

Derry v Peak It was held that P could only recover where the misstatement was fraudulent.

Candler v Crane Christmas Lord Denning dissenting held that the D, an accountant owed a duty to a third
party who he or his employer may show the accounts to. This duty extended to persons who used the
accounts for any transaction for which the accountant knew they were prepared.

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Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 4652 The majority of the HofL preferred Lord
Denning’s approach in Candler v Crane. The Ps were advertising agents who placed ads for their clients
Easy Power. They would provide the money required, and recover the expenses from the client later. They
requested a credit report on Easy Power from the bank, which they provided. However, there was a
disclaimer, which excluded liability. In obiter, the HofL held that if:

–     “in a sphere in which a person is placed…

–     that others could reasonably rely upon his judgement or skill…

–     a person takes it upon himself to give information or advice…or allows his information or advice to be
passed on to another person

–     who…he knows or should know will place reliance upon it,

–     then a duty of care arises.”

Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 Evatt wished to invest in a subsidiary
of MLC’s and asked MLC’s advice regarding whether it was a viable investment. MLC stated that it was,
and Evatt invested in the company. However, it went backrupt, and Evatt sued MLC. The question was
whether MLC owed a duty of care. The HC found that there was DoC, and applied Hedley Byrne v Heller.
Barwick CJ held that the D is liable, notwithstanding a lack of a special skill. A willingness to proffer the
information was sufficient. However, the PC held that there was no DoC where there is no specialized skill.

Shaddock v Parramatta City Council (1981) 36 ALR 385 The P’s solicitor called Parramatta Council to
determine whether there were any road widening proposals. They also sent a written request for the
information. The Council stated that no such plans existed. This was a misstatement, as the clerk filling out
the form had neglected to check whether any proposals were proposed. There were road widening
proposals for both roads on which the property Shaddock bought, and thus, the zoning was no longer
commercial (the property was too small). Thus, they sued the council. Each of the five justices of the HC
held that they preferred Barwick CJ’s view in MLC v Evatt that no specialized skill is required in itself, but
rather, it is a factor in determining whether there was reasonable reliance. Gibbs CJ held that the principle
of reasonable reliance “would…accord with general principle that a person should be under NO duty to take
reasonable care that advice or information he gives is correct unless:

–     he knew or ought to know that the other relies on him to take such reasonable care

–     and may act in reliance on the advice or information…

–     and unless it would be reasonable for that other person so to rely and act.”

San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act (1986)
162 CLR 340 The P was a property developer who saw plans published by Sydney City Council and the
EPA about the redevelopment of Wooloomoloo. It wasn’t a final plan, and nor did it state that these plans
would be put into effect. The developer bought property in Wooloomoloo on the basis of these plans.
However, they were dropped. San Sebastian sued the council and the EPA arguing that they had been

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negligent in preparing and publishing the plans. The Court looked at the scope of the DoC, and to whom it
was owed. It was held that the D was not liable on the basis that:

–     it is necessary that the D intends that P (or a class of persons of whom P is one) should act on the
statement

–     and D must make the statement with the intention of inducing P in reliance on the statement to act or
refrain from acting in a particular way

–     in circumstances where D would realize that economic loss would be suffered if the statement were
incorrect.

Caparo Industries Plc v Dickman [1990] 2 AC 605 The HofL took a narrow view of a DoC. The auditors of a
company were negligent in preparing accounts which were relied upon by a potential investor who bought
lots of shares on the basis of those accounts. The company folded, and the investor sued the auditor. The
HofL held that no duty existed, where the defendant has no specific knowledge of the transaction in respect
of which the plaintiff relies on the information or advice. They further look at the purpose for which the
information is given.

R Lowe Lippman Figdor &Frannck v AGC Advances Ltd (1992) VR 671 It was held that a DoC doesn’t exist
merely because the D knows that the information will be communicated to the P. The D must make the
statement with intent to induce the P to rely on and act upon it.

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 71 ALJR 448 Peat was a very large
firm of chartered accountants, who were the auditors of a company. Esanda was a finance company which
lent a large sum of money to an organization by the name of Excel on the basis of the audited accounts
provided by Peat Marwick, who handed over a copy of the accounts to Esanda. Excel goes bankrupt, and
Esanda commenced proceedings in the SASC, and Esanda submitted a statement of claim stating that
Peat Marwick owed a duty of care, and it did not include that Peat had made the statement with the intent
of inducing Esanda to rely on it. The Ds sought to have the statement of claim struck out as a proper cause
of action had not been disclosed. The appeal to the HC was regarding the strke-out application. The
question was whether Esanda had disclosed a proper cause of action – whether they had pleaded all the
elements of the action. The HC provided separate judgments.

Brennan CJ held that the P must prove that:

–     D knew or ought reasonably to have known that the information or advice would be communicated to
the P

–     And that information or advice would be communicated for a purpose which would be “very likely to
lead P to enter into a transaction”

–     And it would be “very likely that P would enter into such a transaction in reliance on that information”
and thereby risk economic loss.

Thus, Brennan CJ held that there was no duty.

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Dawson J held that there is a requirement for proximity and reasonable reliance. Where there is no request
from the P, the D must intend to induce the P to act. He adopts the “purpose” test in Caparo. (No duty)

Gummow J held that the intention must extend to knowledge that something will happen as a virtual
certainty. But, gives no general rule, asi ti would be inappropriate on a strike out application. (No duty)

McHugh J held that an intent to induce reliance of P is not a necessary element – as there maybe a request
for information, or an assumption of responsibility or other factors (not specified) which give rise to a DoC.
Policy considerations such as increased cost of auditing, decrease in competition, reduction in the standard
of services, cost of insurance, fair and efficient loss absorption, and that the fault of the auditor is only a
secondary cause of loss means that no duty exists.

Gaudron and Toohey JJ held that the “law has not yet developed to a point permitting precise definition or
description.”

Tepko v Water Board HCA 5 April 2001 Tepko owned a lot of land in Western Sydney. The company
wanted the land rezoned in order to subdivide it into residential property. They required water and
sewerage facilities to be connected. They borrowed a very large amount of money in Swiss Francs in order
to get this done. There was difficulty in getting the land rezoned, and thus, in making payments. The bank
requested an estimate for the cost of the connection. The Water Board refused. The P lobbied local
members of the NSW Parliament, and persuaded a local member to approach the Minister for Natural
Resources for the information. The member gets a letter from the minister which gives an estimate of 2/1/2
million dollars. The bank puts the company into liquidation and appoints a receiver, as it believes that the
company can never pay back the money. The letter is from the Minister to the MP. The figure is wildly
inaccurate, and the true estimate is less than a million. The P sues the Water Board arguing that its
negligence caused the bank to put the company into liquidation. The majority of the HC (Gleeson CJ,
Gummmow & Hayne JJ in a joint judgment, & Gaudron J) held that the Water Board did not owe Tepko a
DoC.  The majority:

–     referred to Barwick CJ in Evatt and San Sebastian and held that:

(1)  the speaker must/ought to realize that the recepient intends to act on the information.

(2)  It is reasonable in all circumstances for the recipient to accept and to rely on the utterance of the
speaker.

–     Referring to Perre v Apand, significant matters for the existence of a DoC include:

(3)  foresight of the likelihood of harm

(4)  knowledge/means of knowledge of an ascertainable class of vulnerable persons.

The minority (Kirby and Callinan JJ in a joint judgment and McHugh J) imposed a DoC  because:

   D had a monopoly on the information.

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   The P trusted the D to make a proper estimate.

   D knew that in due course P is likely to be in a close business relationship with the D.

Omissions

Generally, liability is incurred only for an action, not for failing to act. A pure omission is not tortious.

A pure or mere omission is where the failure to act is the only conduct causally linked to the P’s loss.

Where an omission takes place in the course of a larger activity, it is not a mere or pure omission, and it is
actionable.

In some circumstances, there will be a legally recognised pre-existing duty to take positive action. (e.g.
occupier of land).

Hargrave v Goldman (1963) 110 CLR 40 the D was a farmer who had a huge property in WA. A very large
tree was struck by lightning and caught on fire. The farmer, when he became aware of it, took tankers of
water out to it, chops it down, and sprays the water over it. It smoulders for a couple of days, after which it
flared up again, destroying both his and his neighbour’s property. The neighbours sued the farmer arguing
that a DoC existed. The HC agreed, stating that there is a duty “to exercise reasonable care where there is
a fire upon his land (although not started or continued by him) of which he knows or ought to know, if by the
exercise of reasonable care, it can be rendered harmless or its danger to neighbours diminished. On
appeal to the PC, the PC went further than the HC and stated that “the development towards a measured
duty of care by occupiers to remove or reduce hazards to their neighbours…the standard ought to require
of the occupier what it is reasonable to expect of him in his individual circumstances.”

Geyer v Downs  (1977) 138 CLR 91 A student who goes to school early is hit over the head with a softball
bat by another student. The principal knew that students arrived early, and omitted to provide supervision.
The HC held that as the students are the pupils of the school, by virtue of the relationship, the school had a
duty to refrain them from hurting one another.

Smith v Leurs (1945) 70 CLR 256 The Ds were the parents of a thirteen year old boy who fired a stone at
another child, using a slingshot, damaging his eyesight. The HC held that the parents owed a DoC to
control their son. However, it was held that they had not breached their duty, as the parents had forbidden
the boy from using it in the general direction of other people.

Wormald v Robertson [1992] Aust Torts Reports 81-180 Demonstrated that a publican who knew of the
drunken state of a patron who assaults another patron, is liable. The publican owes a DoC to their patrons
that they restrain the drunk from assaulting them.

L v The Commonwealth (1976) 10 ALR 269 There is a duty upon prison authorities to separate remand
prisoners from convicted, violent prisoners, to ensure their safety.

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Lounds v Woods (1996) Aust Torts Reps 81-376 The P was a young epileptic man who was on holiday with
his parents near Terrigal. He suffered an epileptic fit, and the mother remembered that there was a  doctor
up the road. She sent the daughter to call on the doctor, who refused to come, as he was too busy. The
mother also called an ambulance, but the P had suffered irreversible brain damage by the time it had
arrived due to oxygen deprivation. Evidence was adduced that had the doctor arrived at the time he was
asked to, he could have stopped it by administering a normally available drug. Kirby and Priestle JJ found
that the doctor owed a DoC due to his circumstantial proximity, and the societal and policy consideration,
which lay an expectation upon doctors that they come to people’s aid. However, there is no requirement of
a general duty to rescue.

Conclusion

In summary, I got to learn every aspect of negligence while the course of making this project. I got to know
a lot about negligence, a part of torts, and about the cases related to it. It was a pleasure working on this
project. The study of different cases taught me different situations involved with negligence.

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