LAWS1113 Lecture 8

Negligence: Introduction and Duty of Care

General Notes

  • Negligence subsumes other areas of law, particularly torts (eg. Nuisance, Trespass)
  • Evolved from ‘action on the case’ – requires proof of damage
  • Civil Liability Act 2003 (Qld) applies to any civil claim for damage for harm (not just negligence) – it just serves to modify existing common law principles of negligence, doesn’t actually spell it all out

What isn’t Negligence?

  • Accidents where all reasonable precautions are taken is not negligence
  • Accidents where no fault can be PROVEN

Interests Protected by Negligence

  • Person
  • Property
  • Mental
  • Economic (Purely economic loss)

Requirements of Negligence:

  • Duty of Care must exist
  • An unreasonable Breach of that Duty must take place
  • The breach must be proven to be a material cause of the damage (and not TOO remote)

Defences to Negligence:

  • Most common – that of contributory negligence – if the other person is sufficiently at fault, up to 100% of the damage can be borne by them
  • Volenti – “to one who is willing, no injury is done” – consent
  • Illegality – Very hard to sue someone for negligence suffered as a result of your criminal acts
  • Civil Liability Act 2003 (Qld) – makes sueing under negligence harder/limits payments

Civil Liability Act – Relevant Sections

  • Breach (s9, s10)
  • Causation/Remoteness (s11, s12)
  • Defences (s13-s19,s23-s24,s46-s49)

Duty of Care throughout the Ages

  1. Pre-1932 – all categories of negligence handled on a separate category by category basis by judges using a common sense approach
  2. 1932 – Lord Atkin’s neighbour principle (idea of reasonable foreseeability)
  3. Proximity/Proximate relationships – temporal, geographic, etc.
  4. Modern Approach – Proximity no longer a requirement (as per the High Court in Perre v Apand) – multi-factoral – uses principles like the Neighbour Principle, but still uses loose categories

Existing Category Examples

  • Road Accident – duty between driver and other vehicles/pedestrians while driving
  • Occupier-Entrant of house/business
  • Employer/Employee
  • Manufacturer/Consumer (since Donoghue v Stevenson)

What is Foreseeable?

  • Harm of the type suffered must be foreseeable to the class of people who suffered harm
  • Specific circumstances of harm not required (if one kind of physical harm is foreseeable, then any kind of physical harm is considered foreseeable, even if what happens could be considered impossible to predict)
  • Specific person who suffered harm does not have to be foreseeable – if harm to other road users was foreseeable, then anyone else driving/walking on the roads is of the same class, therefore foreseeable
  • Precise events need not be foreseeable, just the general area (Chapman v Hearse)
  • General type of harm must be foreseeable

Donoghue v Stevenson

  • No contract existed because she didn’t purchase the ginger beer herself, had to sue under negligence
  • Existing duty was only owed at that point for products that were dangerous by their very nature (eg. Firearms)
  • Only liability due to lack of opportunity for inspection (opaque bottle) – if she had been able to potentially inspect for snails, would not have been liable

Relevant Cases

Donoghue v Stevenson – A duty of care is owed to those who can be reasonably foreseen to be affected by your actions (Atkin’s neighbour principle). Manufacturer’s of goods that cannot be inspected prior to consumption who a duty of care to the ultimate consumer.

Jaensch v Coffey – it is reasonably foreseeable that negligent behaviour causing harm to a foreseeable class of persons can also cause harm to their loved ones – sufficient causation for negligence. Wife of policeman hit by negligent driver suffered shock, driver was held to be liable for the shock as well as the accident.

Perre v Apand – Proximity is not a requirement for negligence within Australia, pure economic loss is covered under negligence within Australia even when the exact amount is difficult to prove. Infected potato seeds supplied to a nearby property by Apand resulted in Perre being unable to export their potatoes due to restrictions in place because of the outbreak. Apand was held to be liable to Perre despite no relationship existing between them.

Chapman v Hearse – If negligent behaviour results in an individual requiring rescue, they are liable for any harm suffered by their rescuer. Chapman negligently crashed his car, a doctor tried to help him, and was struck and killed by Hearse – Hearse was held liable to the doctor’s family, and Chapman was in turn held liable for contributory negligence.

Palsgraf v Long Island Railroad Co – There must be a direct causation between the negligent act and the damage (proximity). Palsgraf was injured when guards helping a passenger onto the train resulted in him dropping his package, which contained fireworks, which set off vibrations that resulted in Palsgraf being injured by a falling scale.

Manley v Alexander – The road-user owes a duty of care to any other potential road-users or pedestrian’s on the road. Alexander had fallen drunk in the middle of the road, and Manley was distracted by Alexander’s drunk friend lurching around – was held to still owe a duty of care of Alexander, but damages were reduced by 70% for contributory negligence of Alexander.

Watt v Rama – The duty owed to a pregnant mother extends to an unborn child only after the child has been born alive. No case exists prior to the birth or if the child dies in utero.

Czatyrko v Edith Cowan University – Employers creating an unsafe working environment are liable under negligence for any harm suffered by employees. Czatyrko was under pressure to load up a truck quickly, and the lift he was standing on made no noise when moving down – began going down as he stepped backwards into the truck, resulting in him falling and suffering injury.