<Topic 4: Negligence and Negligent Misstatement>
Duty of care
Neighbour principle* # Donoghue v Stevenson [1932] A person must take reasonable care to
- snail inside the drink -> food poison and avoid acts or missions that can reasonably
psychological harm, shock foresee would be likely to injure their
neighbour
DOC/ exists – (carless act in production)
Reasonably foreseeability # Bourhill v Young [1943] The defendant’s act or omission could
- car accident -> only see aftermath cause harm to someone in the plaintiff’s
result position
DOC/ no exist – (it’s indirectly)
# Chapman v Hearse [1961]
- Chapman involved car accident ->
Cherry came help and get ran over by
Hearse
DOC/ exists – (someone might stop to assist
and that person might themselves be injured
or killed)
Salient features # Sullivan v Moddy [2001] Factors which the court will take into
- Father accused by wife for sexually action when determining whether the
abusing their child duty of care exist
- Doctor -> Department of Community
Welfare
- Father adopt a psychiatric illness, sue Other features:
wife and doctor the control the defendant has over
the situation and the relative
DOC exist? – depends! vulnerability of the plaintiff;
the relative knowledge and
Coherency law experience of the parties;
- If negligence can be used to prevent
from passing on adverse information the type of harm suffered by the
about the plaintiff, it could conflict with plaintiff and any relevant moral or
the law of defamation ethical questions; and
Conflicting duties of care the need for people to take personal
- If doctor owes DOC to both parties responsibility for their own actions
- If public authority owes DOC to an
alleged perpetrator of child abuse
However, as a counterargument, it may claim
Indeterminate liability that …. was not sufficient ….
- If Welfare’s DOC extended to parents, it
could also extend to others
Breach of duty of care
Standard of care* # Imbree v McNeilly [2008] A person breaches the duty of care if they
– “reasonable person test” – - Mc without license -> car accident fail to meet the standard of care that the
- Imbree (passenger with known) sue Mc reasonable person is required to show to
(If below -> breach) avoid unreasonable risk of harm
(If above -> not breach) BDOC/ yes – (as another driver owe to other
drivers, however a DOC he owed was lower The reasonable person need not respond
than that owe by a reasonable driver – to a risk that is “far-fetched and fanciful”
[s48 Wrongs Act 1958 (Vic)] inexperienced)
Probability of harm # Bolton v Stone [1951] If the risk of injury was small (insignificant)
(would happen if - Plaintiff hit by the cricket ball that a reasonable person would not have
precautions were not taken) done anything, the defendant has not
BDOC/ no – (the risk is too small) breach their duty of care
, If the possible harm arising from a careless
The likely seriousness of # Paris v Stepney Borough Council [1951] act is not very significant then the
harm - Paris get hit by a piece of glass -> totally defendant will owe a lower standard of
blind care, if it’s very serious then they will owe
a higher standard of care
DOC/ exists – (the council owes Paris)
If the defendant could have avoided the
The burden of taking # Latimer v AEC [1953] risk of injury by taking some relatively
precautions - Factory floors slippery -> plaintiff simple precautions, their failure to take
(to avoid the risk of harm) slipped -> sue the owner those precautions is likely to be a breach
of duty
BDOC/ no – (the owner could have taken However, if the risk of injury could not
precaution of closing, but would incur have been avoided by taking significant,
significant expense) expensive and onerous precautions, it is
less likely that the defendant will have
breached their duty by failing to take
those precautions
At the time that the defendant’s conduct
The social utility # Watt v Hertfordshire Country Council [1954] was alleged to have caused harm to the
(of the activity creating the - The truck with a jack was used to plaintiff, was the defendant doing
risk of harm) attend an accident helping people -> something that was socially useful? If so, it
break suddenly is less likely that they will be found to have
breached their duty of care
BDOC/ no – (it held the benefit such work
provided to society, saving human life)
[14G Wrong Acts 1958 (Vic)] (more social utility -> less likely)
The illegality of
the plaintiff’s (less social utility -> more likely)
conduct/ activity
Damages (Breach caused harm)
Factual causation # Yates v Jones [1990] Caused by careless act, either directly or
– “but for test” – - Injured from car accident drove by indirectly - the harm suffered by the
Jones plaintiff
- Yates claim the cost of heroin which she
became addicted The...(impact) which plaintiff suffer from…would
not have occurred “but for” the defendant
No – (the accident was not a cause) breach of its duty of care
– “material contribution # Chappel v Hart [1998] Only when a wrongful act or omission
test” – results in an increased risk of injury to the
# Cook v ACT [2001] plaintiff and that risk eventuates, whether
- Overheated sauna -> heart attack or not other factors also contributed to
that injury occurring
Scope of liability # Rowe v McCartney [1976] Whether the actual loss or injury suffered
– “remoteness” – - Rowe involved in car accident drove by by the plaintiff was a reasonably
Mc foreseeable consequence of the
- Rowe received minor injuries, develop defendant’s carelessness/ acceptable
mental illness due to the guilt ->
claiming costs
No – (it’s not reasonably foreseeable that
mental illness was a result of accident)
# The Wagon Mound No 1 [1961] The harm/ loss must not be “too remote
- Sparks from welding work -> oil caused or far-fetched” from the breach of duty,
fire (too remote) for compensation to be allowed
No – (it’s not reasonably foreseeable that the
seepage of oil would cause fire, the
[s51 Wrongs Act 1958 (Vic)] subsequent damage was too remote)
Defences
Duty of care
Neighbour principle* # Donoghue v Stevenson [1932] A person must take reasonable care to
- snail inside the drink -> food poison and avoid acts or missions that can reasonably
psychological harm, shock foresee would be likely to injure their
neighbour
DOC/ exists – (carless act in production)
Reasonably foreseeability # Bourhill v Young [1943] The defendant’s act or omission could
- car accident -> only see aftermath cause harm to someone in the plaintiff’s
result position
DOC/ no exist – (it’s indirectly)
# Chapman v Hearse [1961]
- Chapman involved car accident ->
Cherry came help and get ran over by
Hearse
DOC/ exists – (someone might stop to assist
and that person might themselves be injured
or killed)
Salient features # Sullivan v Moddy [2001] Factors which the court will take into
- Father accused by wife for sexually action when determining whether the
abusing their child duty of care exist
- Doctor -> Department of Community
Welfare
- Father adopt a psychiatric illness, sue Other features:
wife and doctor the control the defendant has over
the situation and the relative
DOC exist? – depends! vulnerability of the plaintiff;
the relative knowledge and
Coherency law experience of the parties;
- If negligence can be used to prevent
from passing on adverse information the type of harm suffered by the
about the plaintiff, it could conflict with plaintiff and any relevant moral or
the law of defamation ethical questions; and
Conflicting duties of care the need for people to take personal
- If doctor owes DOC to both parties responsibility for their own actions
- If public authority owes DOC to an
alleged perpetrator of child abuse
However, as a counterargument, it may claim
Indeterminate liability that …. was not sufficient ….
- If Welfare’s DOC extended to parents, it
could also extend to others
Breach of duty of care
Standard of care* # Imbree v McNeilly [2008] A person breaches the duty of care if they
– “reasonable person test” – - Mc without license -> car accident fail to meet the standard of care that the
- Imbree (passenger with known) sue Mc reasonable person is required to show to
(If below -> breach) avoid unreasonable risk of harm
(If above -> not breach) BDOC/ yes – (as another driver owe to other
drivers, however a DOC he owed was lower The reasonable person need not respond
than that owe by a reasonable driver – to a risk that is “far-fetched and fanciful”
[s48 Wrongs Act 1958 (Vic)] inexperienced)
Probability of harm # Bolton v Stone [1951] If the risk of injury was small (insignificant)
(would happen if - Plaintiff hit by the cricket ball that a reasonable person would not have
precautions were not taken) done anything, the defendant has not
BDOC/ no – (the risk is too small) breach their duty of care
, If the possible harm arising from a careless
The likely seriousness of # Paris v Stepney Borough Council [1951] act is not very significant then the
harm - Paris get hit by a piece of glass -> totally defendant will owe a lower standard of
blind care, if it’s very serious then they will owe
a higher standard of care
DOC/ exists – (the council owes Paris)
If the defendant could have avoided the
The burden of taking # Latimer v AEC [1953] risk of injury by taking some relatively
precautions - Factory floors slippery -> plaintiff simple precautions, their failure to take
(to avoid the risk of harm) slipped -> sue the owner those precautions is likely to be a breach
of duty
BDOC/ no – (the owner could have taken However, if the risk of injury could not
precaution of closing, but would incur have been avoided by taking significant,
significant expense) expensive and onerous precautions, it is
less likely that the defendant will have
breached their duty by failing to take
those precautions
At the time that the defendant’s conduct
The social utility # Watt v Hertfordshire Country Council [1954] was alleged to have caused harm to the
(of the activity creating the - The truck with a jack was used to plaintiff, was the defendant doing
risk of harm) attend an accident helping people -> something that was socially useful? If so, it
break suddenly is less likely that they will be found to have
breached their duty of care
BDOC/ no – (it held the benefit such work
provided to society, saving human life)
[14G Wrong Acts 1958 (Vic)] (more social utility -> less likely)
The illegality of
the plaintiff’s (less social utility -> more likely)
conduct/ activity
Damages (Breach caused harm)
Factual causation # Yates v Jones [1990] Caused by careless act, either directly or
– “but for test” – - Injured from car accident drove by indirectly - the harm suffered by the
Jones plaintiff
- Yates claim the cost of heroin which she
became addicted The...(impact) which plaintiff suffer from…would
not have occurred “but for” the defendant
No – (the accident was not a cause) breach of its duty of care
– “material contribution # Chappel v Hart [1998] Only when a wrongful act or omission
test” – results in an increased risk of injury to the
# Cook v ACT [2001] plaintiff and that risk eventuates, whether
- Overheated sauna -> heart attack or not other factors also contributed to
that injury occurring
Scope of liability # Rowe v McCartney [1976] Whether the actual loss or injury suffered
– “remoteness” – - Rowe involved in car accident drove by by the plaintiff was a reasonably
Mc foreseeable consequence of the
- Rowe received minor injuries, develop defendant’s carelessness/ acceptable
mental illness due to the guilt ->
claiming costs
No – (it’s not reasonably foreseeable that
mental illness was a result of accident)
# The Wagon Mound No 1 [1961] The harm/ loss must not be “too remote
- Sparks from welding work -> oil caused or far-fetched” from the breach of duty,
fire (too remote) for compensation to be allowed
No – (it’s not reasonably foreseeable that the
seepage of oil would cause fire, the
[s51 Wrongs Act 1958 (Vic)] subsequent damage was too remote)
Defences
