Transcript LAW OF TORTS LECTURE 4 Negligence – Duty of Care Clary Castrission

LAW OF TORTS
LECTURE 4
Negligence – Duty of Care
Clary Castrission
[email protected]
How will we cover negligence?
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Today: Duty of Care at common law
Civil Liability Act and Duty of Care
More CLA and Breach of Duty
Damage and Particular Duty Areas
More Particular Duty Areas
Roadmap for today
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Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
– Proximity and Reasonable Foreseeability v Incrementalism
• Some interesting applications
– Unborn children and the wrongful life cases
• Legislative reform
The Challenge for Today
United Novelty Co. Inc. v. Daniels 42 So.2d 395
(Miss. 1949)
NEGLIGENCE AND FAULT IN
TORTS
FAULT
INTENTION
NEGLIGENCE
TRESPASS
CARELESS
NEGLIGENCE
the action
NEGLIGENT TRESPASS
• Intentional or negligent act of D
which directly causes an injury to
the P or his /her property without
lawful justification
•The Elements of Trespass:
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fault: intentional or negligent act
injury must be direct
injury may be to the P or to his/her property
No lawful justification
NEGLIGENT TRESPASS
• While trespass is always a direct tort, it is not
necessarily an intentional act in every
instance. It may be committed negligently
• Negligent trespass is an action in trespass not
in negligence:
• Where the facts of a case permit, it is possible
to frame an action in both trespass and
negligence on the same facts
• Williams v. Molotin (1957) 97 CLR. 465.
What is Negligence?
• It is the neglect of a legal duty
• Negligence v carelessness
•“The law takes no cognisance of negligence in the
abstract. It concerns itself with carelessness only where
there is a duty to take care and where failure in that duty
has caused damage.” (Lord MacMillan in D v S)
•Tame v NSW (2002) 211 CLR 317
Negligence: The Elements
Duty of care
Negligence
Breach
Damage
Negligence: The Early Cases
• Heaven v. Pender (1883)
• The dicta of Brett MR:
• whenever one person is by circumstances placed in
such a position with regard to another, that every one
of ordinary sense who did think would at once
recognise that if he did not use ordinary care and skill
in his own conduct with regard to those circumstances
he would cause danger or injury to the person or
property of the other (person) a duty arises to use
ordinary care and skill to avoid such danger.
Donoghue v. Stevenson [1932] AC 562
• Facts
• Understanding the relationships
Donoghue v Stevenson (cont)
• Dicta of Lord Atkin
• The rule that you are to love your neighbour
becomes in law, you must not injure your
neighbour, and the lawyer’s question, who is
my neighbour? receives a restricted reply. You
must take reasonable care to avoid acts or
omissions which you can reasonably foresee
would be likely to injure your neighbour.
Who then in law is my neighbour? The
answer seems to be persons who are closely
and directly affected by my act that I ought
reasonably to have them in mind to the acts or
omissions which are called into question (at
599)
The Manufacturer’s Duty
• Grant v Australian Knitting Mills (1936)
The application of the rule in D v S
•a manufacturer of products, which he sells in such a
form as to show that he intends them to reach the
ultimate consumer in the form in which they left him
with no reasonable possibility of intermediate
examination, and with the knowledge that the absence
of reasonable care in the preparation or putting up of
the products will result in an injury to the consumer’s
life or property, owes a duty to the consumer to take
that reasonable care
• Baar v Snowy Mountains Hydro-Electric Authority (1970)
92 WN (NSW) 472
What did Lord Atkin mean?
• “What Lord Atkin did was use his general
conception to open up a category of cases giving
rise to a special duty… [The process] may be
described either as the widening of an old
category or as the creation of a new and similar
one. The general conception can be used to
produce other categories in the same way.”
– Lord Devlin in Hedley Byrne & Co Ltd v
Heller & Partners Ltd [1964] AC 465 (at 524)
Established Categories
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Type of Harm
Type of Defendant
Type of Plaintiff
Manufacturer to consumer
Makers/repairers to users of chattels
Teachers to pupils
Occupiers of land to visitors
Skilled professionals to their clients
Highway workers to highway users
Checking In
• Snails
• Overview of negligence
• Arriving at a Duty of Care
• Categories
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• The harder ones:
– Proximity and Reasonable Foreseeability v Incrementalism
• Some interesting applications
– Unborn children and the wrongful life cases
– Legislative reform
Duty of Care in General
• Where there is physical loss or injury (or an
established category), duty is relatively easy to
identify.
– Rylands v Fletcher (1868) LR 3 HL 330
• Where nature of harm is more difficult to
identify or quantify, it gets tougher.
WHAT HAPPENS WHEN THE DUTY DOES
NOT FIT AN ALREADY EXISTING
CATEGORY?
• What is needed is “a conceptual framework
that will promote predictability and continuity
and at the same time facilitate change when it is
needed.” (McHugh J in Perre v Apand (1999))
• Principle v Category
• Principle: Proximity and Reasonable
Foreseeability
• Category: Incrementalism
• There is still “much disorder and confusion”Kirby J Perre v Apand
What is Reasonable
Foreseeability?
•Question of identity of the plaintiff:
Is the P reasonably foreseeable (as
person or member of a class of people)
likely to be affected by D’s actions?
•Question of law
Reasonable Foreseeability: Case
Law
•Some illustrations
–Palsgraf v. Long Island R.R. Co. (1928
– Chapman v. Hearse (1961)
Reasonable Foreseeability:
Established Category Of Duty of
Care
• Wyong Shire Council v Shirt (1980) 146 CLR 40
per Brennan J:
– risk must be “real” in the sense that a reasonable person
would not “brush it aside as far-fetched or fanciful.”
• Koehler -v- Cerebos (Australia) Limited [2005]
HCA 15
McHugh, Gummow, Hayne and Heydon JJ (majority):
“The central inquiry remains whether, in all the
circumstances, the risk of a plaintiff … sustaining a
recognisable psychiatric illness was reasonably
foreseeable, in the sense that the risk was not far fetched or
fanciful” [33]
Needs Something Else…
•Sullivan v Moody (2001) 207 CLR
562
– “The fact that it is foreseeable… that a
careless act on the part of one person may
cause harm to another does not mean the
first is subject to a legal liability…”
Proximity
Jaensch v. Coffey (1984)
•(Proximity involves) notions of nearness or
closeness and embraces physical proximity (in the
sense of space and time)…, circumstantial proximity
such as an overriding relationship of employer and
employee or of a professional man and his client, and
causal proximity in the sense of the closeness or
directness of the relationship between the particular
act or cause of action and the injury sustained.” (per
Deane at 584-585)
The High Point of Proximity
• Bryan v Maloney (1995) 182 CLR 609
– “A duty of care arises under the common law
of this country only where there exists a
relationship of proximity between the parties
with respect to both the relevant class of act
or omission and the relevant damage.” (at
543)
The Main Features of Proximity
PROXIMITY
Degree of proximity
Physical
Circumstantial
Causal
Evaluation
Evaluation
of legal
and policy
considerations of
what is fair
and reasonable
Proximity Criticised
• The High Court has expressed reservations
about the usefulness of the notion of proximity
in recent times
– Sutherland SC v Heyman (1985)
– Hill v Van Erp (1997)
– Perre v Apand (1999)
– Modbury Triangle Shopping Centre Pty Ltd v
Anzil (2000)
Proximity - Criticised
Sullivan v Moody (2001) 207 CLR 562
•Facts
•Judgment
Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:
[573] “…foreseeability of harm is not sufficient to give rise
to a duty of care”
[578] “The formula is not ‘proximity’. Notwithstanding the
centrality of that concept, for more than a century … it
gives little practical guidance in determining whether a
duty of care exists in cases that are not analogous to cases in
which a duty has been established”
Incrementalism
• “It is preferable, in my view, that the law should
develop novel categories, rather than by a
massive extension of a prima facie duty of care
restrained only by indefinable considerations
which ought to negative, or limit the scope of the
duty or the class of persons to whom it is owed.”
– Brennan J in Sutherland Shire
Council v Heyman (1985) HCA
The Anns 2-Stage Test:
The UK Way
• Anns v Merton London Borough Council [1978]
AC 728
• 2-Stage Test (Wilberforce):
– It requires first a ‘sufficient relationship of
proximity based upon foreseeability’;
– and secondly considerations of reasons why
there should not be a duty of care.
Australia Elaborates on Anns
• Jaensch v. Coffey (1984) per Deane J. p587-8
• A duty situation could arise from the following
combination of factors
– A reasonable foreseeability of real risk of injury to P either
as an identifiable individual or a member of a class of
persons, and
– The existence of proximity between the parties with respect
to the act or omission
– Absence of any rule that precludes such a duty
The 3-Stage Caparo Test
• Caparo Industries Plc v Dickman [1990] 2 AC
605
– Was damage to P reasonably foreseeable
– Was relationship between P and D sufficiently proximate,
and if so
– Would it be fair, just and reasonable to apply DOC
Perre v Apand (1999) 198 CLR
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• Facts
• High Court gets the chance to explore the
current state of duty of Care
Gaudron in Perre
• Prox is too ambiguous: “First, proximity as the
second stage in a three stage test has no more
content than it did when it was used as the
unifying criterion…” [Gaudron at 10]
• Too powerful: would prevent incrementalism.
Concern that Caparo would be used in any case,
even where there is an established duty category
• Too troublesome: “Fair, just and reasonable” is
troublesome:- “They are of little use, if they are of
any use at all, to the practitioners and trial judges
who must apply the law to concrete facts arising
from real life activities.” [Gaudron at 12]
Gaudron Concluding
• Need for predictability
– “When legal practitioners are unable to predict the
outcome of cases with a high degree of probability,
the choice for litigants is to abandon or compromise
their claims or defences or to expose themselves to
the great expense and unpredictable risks of
litigation.” [Gaudron at 20]
• Incrementalism is best compromise
– “Until a unifying principle again emerges, however,
the best solution is to proceed incrementally from
the established cases and principles.” [Gaudron at
25]
Kirby J
• Look at other jurisdictions
• Reasonable foreseeability falls short, so proximity has a
role to play:
– “If on the other hand, proximity were to be confined to
its original historical purpose as a measure of
“nearness and closeness” between the parties in
dispute, it cold yet provide a meaningful gateway, in
addition to reasonable foreseeability of harm, to afford
the starting point for the allocation of a legal duty of
care or exemption from its burden. Then it would
remain necessary to weigh candidly the competing
policy considerations relevant to the imposition of a
duty of care.” [Kirby at 24]
Kirby J applying Caparo
• Foreseeability
• Proximity
• Policy
Wrapping up the approaches
The quest for the unifying principle
- Anns 2-Stage Test
- Caparo
Incremental Approach: A compromise
- Brodie v Singleton Shire Council (2001) 206 CLR 512
Checking In
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Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
– Proximity and Reasonable Foreseeability v Incrementalism
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• Some interesting applications
– Unborn children and the wrongful life cases
• Legislative reform
Interesting Duty Application 1
• The unborn child:
– There can be no justification for distinguishing between the
rights… of a newly born infant returning home with his /her
mother from hospital in a bassinet hidden from view on the
back of a motor car being driven by his proud father and of a
child en ventre sa mere whose mother is being driven by her
anxious husband to the hospital on way to the labour ward to
deliver such a child ( Per Gillard J in Watt v Rama)
- Lynch v Lynch (1991)
- Watt v Rama [1972] VR 353
Unborn Child
• Wrongful life cases
– Harriton v Stephens [2006] HCA 15 (9 May 2006)
Appeal dismissed (7 to 1 majority)
– Crennan J (Gleeson CJ, Gummow & Heydon JJ
agreeing), Hayne J and Callinan J in separate
judgments dismissed the Appeal
– Kirby J dissented
Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [244] “It was not Dr P R Stephens's fault that Alexia
Harriton was injured by the rubella infection of her
mother. Once she had been affected by the rubella
infection of her mother it was not possible for her to
enjoy a life free from disability. ... Dr P R Stephens
would have discharged his duty by diagnosing the
rubella and advising Mrs Harriton about her
circumstances, enabling her to decide whether to
terminate her pregnancy; he could not require or compel
Mrs Harriton to have an abortion. ”
Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [249] “It is not to be doubted that a doctor has a duty to
advise a mother of problems arising in her pregnancy,
and that a doctor has a duty of care to a foetus which may
be mediated through the mother[403]. However, it must
be mentioned that those duties are not determinative of
the specific question here, namely whether the particular
damage claimed in this case by the child engages a duty
of care. To superimpose a further duty of care on a doctor
to a foetus (when born) to advise the mother so that she
can terminate a pregnancy in the interest of the foetus in
not being born, which may or may not be compatible
with the same doctor's duty of care to the mother in
respect of her interests, has the capacity to introduce
conflict, even incoherence, into the body of relevant legal
principle ”
DUTY TO RESCUE
• There are two separate issues in rescue:
– The ‘duty’ to rescue
– The duty of care owed to the rescuer
• There is no positive legal obligation in the
common law to rescue
– The law does not ‘cast a duty upon a man to go to the aid of
another who is in peril or distress, not caused by him”: Hargrave
v Goldman (`963)
• There may however exist a duty to rescue in master
servant relationships or boat owner and guest
relationships for instance
– Horsley v Maclaren (The Ogopogo) (1971) 22 DLR
• One is only required to use reasonable care and
skill in the rescue
THE DUTY OWED TO
RESCUERS
• The rescuer is generally protected : torts recognizes the existence of a
duty of care owed to the rescuer.
• The issue of volenti-non fit injuria: This principle does not seem to
apply in modern tort law to rescue situations.
• ‘The cry of danger is the summons to relief. The law does not ignore
these reactions of the mind.. It recognizes them as normal… and places
their effects within the range of of the natural and the probable [and for
that matter the foreseeable] per Cardozo J in Wagner v International
Railway Co. (1921)
– Chapman v Hearse
– Videan v British Transport Commission (1963) (rescue attempt to get a child
trespassing on railway line)
• Rescuers may recover for both physical injuries and nervous shock
– Mount Isa Mines v Pusey (1970)
• The US fire-fighter’s Rule does not apply in Australia and the UK
– Ogwo v Taylor (1988) AC 431
IMPACT OF THE CIVIL LIABILITY
ACT ON THE DUTY OF CARE
• The Civil Liability Act 2002 together with the
Civil Liability Amendment (Personal
Responsibility) Act 2002 govern the law of
negligence in NSW.
– The Civil Liability Act 2002 was enacted 28th May 2002 and
received assent on 18 June 2002
• Rationale behind the legislation:
– to limit the quantum of damages for personal injury and death
in public liability instances; resultantly lowering insurance
premiums.
– to discourage ‘over litigation’, by the imposition of
restrictions and obligations and responsibilities upon
plaintiffs and counsel
Civil Liability Act 2002: Duty of
Care
• Statute overrides the common law and that any
negligence claim commenced since 20 March
2002 will be governed by the Civil Liability Act
2002.
• Next lecture, we will consider the application
of:
– general duty of care provisions of s.5B;
– situations of obvious/inherent risks under ss.5F to I; and
– situations of dangerous recreational activities under ss.5J to
N.
The Rationale for Reform
•[I]t's my view that this country is
tying itself up in tape because of over
litigation, a long-term trend to see us
litigate for everything, to try to settle
every problem in our lives...by getting
a big cash payment from the courts....a
country as small as ours can't afford to
have the American-style culture of
litigation". (Bob Carr)
The Rationale for Reform
• ‘We need to restore personal responsibility and
diminish the culture of blame.That means a
fundamental re-think of the law of negligence, a
complex task of legislative drafting.
There is no precedent for what we are doing,
either in health care or motor accident law, or in
the legislation of other States and Territories.
We are changing a body of law that has taken
the courts 70 years to develop’ (Bob Carr)
The Approach to Reform:
Government’s View
• We propose to change the law to exclude claims
that should never be brought and provide
defences to ensure that people who have done
the right thing are not made to pay just because
they have access to insurance (Bob Carr)
• We want to protect good samaritans who help
in emergencies. As a community, we should be
reluctant to expose people who help others to
the risk of being judged after the event to have
not helped well enough (Bob Carr)
Wrap-Up
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Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
– Proximity and Reasonable Foreseeability v Incrementalism
• Some interesting applications
– Unborn children and the wrongful life cases
• Legislative reform
So What About the Rat?
• United Novelty Co. Inc. v. Daniels, 42 So.2d 395
(Miss. 1949)