Seminar 7 Negligence: overview and

introduction to duty

Overview of negligence
Elements of the Tort of Negligence
'damage is the gist of a negligence action'
• de minimis non curat lex: the law requires P to suffer and prove actual damage for
an action in negligence (min amount of damage required = legally recognised harm)
 Elements Explanation
1. duty of care the D owes P, who suffers legally recognised harm or
damage, a duty to take care
the D's conduct breaches the duty, by not satisfying the
standard of care expected of the reasonable D in the
2. breach circumstances.
This is the 'fault' element in tort, assessed on the basis of
reasonableness.
the breach is a factual cause of the harm; it is appropriate
3. causation that the D be held causally responsible, and the reasonably
foreseeable type of harm suffered is not too remote
4. no defences no defence applies (if contributory negligence applies, it
reduces damages)
Allows legal proceedings w/o proof of deliberate intent -- legally established
carelessness suffices
2nd Element Breach of DOC: The Standard of Care
Expected to the 'Reasonable Person'
The calculus of negligence at common law & under statute
Breach involves an assessment of the standard of care & whether there has been a
factual breach of duty to take care.
• owing DOC is insufficient to establish liability ➡️ liability attaches only to the breach
of that duty when it causes harm that is not too remote
◦ this involves an examination of the standards of behaviour that are
acceptable/unacceptable in a course of conduct
◦ 'did the D's conduct discharge the DOC?'
P must identify & prove a specific failure by D ➡️ if proven, failure must be considered
in the context of causation ➡️ did the specific breach cause the P harm?
Wyong Shire Council v Shirt (1980) 146 CLR 40 (High Court Standard of Care
Case) given in any
Mason J situation
1. the risk of injury was foreseeable to the reasonable person
2. if satisfied, court should consider 'negligence calculus'
1. Foreseeable risk
Definition: one that is not far-fetched or fanciful
* statutes now prescribe that risk must be 'not insignificant'
2. Negligence Calculus in common law
Definition: consider all the factors that would influence a reasonable person in
determining whether to take precautions to avoid the risk of injury manifesting itself
• the pr of the risk materialising;
• the gravity of the harm if it were to materialise;
• the practicality of precautions
• the social utility (or 'justifiability') of the D's conduct
• other factors, such as conflicting responsibilities

The Reasonable Person: modifications to the objective standard

The standard of care expected of D is objective
D's conduct is compared to an ordinary, reasonable prudent
person: Ususal
• what would they have done to avoid the risk of injury to
another?
Professionals acting in professional capacity
Rogers v Whitaker (1992) 175 CLR 479 at 487 [expert
evidence]
The SOC to be observed by a person with special
skill/competence is that of the ordinary skilled person
exercising & professing to have that special skill
• not determined solely or primarily by reference to the
practice followed/supported by a responsible body of
opinion in the relevant profession
• evidence of acceptable medical practice is a useful
guide for the courts
Courts will adjudicate on what is the appropriate SOC after
giving weight to 'the paramount consideration that a person is
 entitled to make his own decisions about his life'
Naxakis v Western General Hospital (1999) 197 CLR 269
Rogers principle extends to over diagnosis & treatment
📍 Govern all professionals: conduct will not be considered Exceptional
Neg if complies with 'peer professional opinion' (court has circumstances
final say)
• does not apply to info provisions, advice or warnings

Children (objective SOC is modified lower)

Consequences of Breach Finding
The court assesses the reasonableness of D's conduct in the circumstances of each
case.
• Breach is tied to facts and not of precedential value

3rd Element Causation of Harm Not Too Remote

Civil liability legislation
1. Establish 'factual causation' - Casual Necessity
Intended to determine whether, on a balance of probabilities, the damage would have
been sustained w/o the D's breach
• Courts ask: did D's breach 'make a difference'? Was it a 'necessary condition' of
the occurrence of the harm?
Limitations
• may not provide a sensible result in circumstances of evidential uncertainty

2. 'Scope of Liability'
An evaluation by court, whether responsibility for the harm should be attributed to the
negligent party?
 Wallace v Kam (2013) 250 CLR 375 (HC Case) Scope of Liability
Civil Liability Acts
• A normative element concerned with policy considerations; and
• whether it's appropriate for the scope of the D's liability to extend to
responsibility for this harm
Court: whether there are any new intervening acts that
relieve D of responsibility by breaking the link b/w the breach novus actus
interveniens
& harm
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co
Ltd (The Wagon Mound (No 1)) [1961] AC 388
📝 'remoteness of harm'
to be held responsible, D must reasonably foresee 'harm of remoteness of
the same kind' as that suffered by the P harm
• D need not foreseen the extent of harm to be held
liable, nor the precise manner in which it occurred
• Also take P as found with their physical & psychological
constitutions
Reasonable Foreseeability
1st Element Introduction to the Duty of Care in
Negligence
Origins of the duty of care in the law of negligence
Traditionally, D does not owe a legal duty to the world at large
• 1st element is whether D owes the P a duty to take reasonable care for the safety of
the P's interest
DOC involves the legally recognised relationship b/w parties - relationship can arise
even though parties are strangers
Established Category of DOC
Commonplace: manufacturer & consumer, road users, employer & employee, school &
pupil, doctor & patient
• may be uncertainty regarding precise boundaries

Establishing DOC in Novel/Contentious Circumstances

Leading Case Donoghue v Stevenson [1932] AC 562 (Lord Akin)
The importance of the limiting concept of 'foreseeability': it would be unfair to impose
liability if persons in the position of D were not generally able to foresee consequences
of the kind that occurred to this class of persons.
• However, foreseeability is now undemanding: advancements in science, anything is
possible
High Court now use 'Salient Features' - A Balancing Act
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649
• D's ability to exercise control to avoid harm
• P's vulnerability to harm arising from D's conduct
• P's reliance on D
• D's assumption of responsibility
• D's actual or constructive knowledge that the conduct will cause harm to P
Also incorporate policy considerations
• undesirable 'defensive practices' or 'diversion of scarce resources'
• potential indeterminacy of liability, possible deleterious effects on autonomy, need
to avoid conflicting duties (undermine coherence with other CL principles or
statutory obligations)
* Donoghue v Stevenson [1932] AC 562 (Scotland) (this case shows a now well-
established duty relationship (also a special relationship), between manufacturer and
consumer)
 • P went with a friend to cafe, P's friend bought her a bottle
of ginger beer manufactured by D
• Bottle was made with dark opaque glass, P drank some,
which owner of cafe poured into a glass
• When P's friend poured remainder into glass, decomposed
Fact remains of a snail fell from the bottle
• P suffered shock at sight of snail & severe gastroenteritis
from consumption
• P sued D, damaged was caused by D's failure to take
reasonable care in manufacturing & bottling ginger beer
Issue Did D owe P a duty to take reasonable care in manufacturing the
ginger beer?
• Take reasonable care to avoid acts/omissions which one
can reasonably foresee would likely to injure
• persons who are closely and directly affected by the act
Reasoning that one ought reasonably to have them in contemplation
as being so affected when one is directing their mind to
the acts/omissions
Decision D owed DOC
Reasonable foreseeability
* Chapman v Hearse (1961) 106 CLR 112 (shows a well-established duty relationship
(also a special relationship), between motor vehicle drivers and other road users; by
analogy, train drivers and pilots/airlines owe a duty to passengers)
 • A car overturned in the road as result of neg of driver (C)
• Cherry went to assist C, who had been thrown from his car
and was lying injured on the road
• Cherry was run over & killed by another (H) while tending
to C
• Cherry estate sued H, alleging Cherry's death was caused
Fact by H's neg
• H joined C as a 3rd party, alleging that Cherry's death had
been caused in part by C's original act of neg for
overturning car
To determine whether C was partly liable for Cherry's death, 1st
determine whether C owed DOC to Cherry (his rescuer)
Issue Did Chapman (P) owe a duty to Dr Cherry, his rescuer, to drive
with reasonable care, so that he would not need to be rescued?
• Rejected that existence of DOC requires precise sequence
of events leading to the injury to be foreseeable
• Instead, sufficient to ask whether a consequence of the
same general character as the injury that occurred was
foreseeable
Reasoning To establish a prior existence of DOC with respect to a P
subsequently injured as a result of a sequence of events
following D's carelessness, it is not necessary for the P to show
that the precise manner in which his injures were sustained was
reasonably foreseeable; it is sufficient if it appears that injury to
a class of persons of which he was one might reasonably have
been foreseen as a consequence
Decision C owed Cherry DOC
Commentary from judges
• Ask whether harm is ‘in the realm of intelligent imagination’: Hayne J in Modbury
Triangle
• Ask whether harm is ‘not unlikely’, not simply ‘theoretical or unreal’: Barwick CJ in
Caterson v Railways
• The test is an ‘undemanding’ one: Spigelman CJ in NSW v Godfrey

Salient features
The incremental approach to duty questions is to use a multi-factorial analysis focusing
on 'salient features' (a description of factors taken into account when determining
whether a DOC should/shouldn't be imposed)
Gummow J in Perre v Apand Pty Ltd (at [198]-[199])
• DOC requires examination of specific facts & circumstance of each case, rather
than reliance solely on legal principles or precedents
Judges can choose from the non-exhaustive universe of Salient Features:
1. the foreseeability of harm;
2. the nature of the harm alleged;
3. the degree and nature of control able to be exercised by the defendant to
avoid harm;
4. the degree of vulnerability of the plaintiff to harm from the defendant’s
conduct, including the capacity and reasonable expectation of a plaintiff to
take steps to protect itself;
5. the degree of reliance by the plaintiff upon the defendant;
6. any assumption of responsibility by the defendant;
7. the proximity or nearness in a physical, temporal or relational sense of the
plaintiff to the defendant;
8. the existence or otherwise of a category of relationship between the
defendant and the plaintiff or a person closely connected with the plaintiff;
9. the nature of the activity undertaken by the defendant;
10. the nature or the degree of the hazard or danger liable to be caused by the
defendant’s conduct or the activity or substance controlled by the defendant;
11. knowledge (either actual or constructive) by the defendant that the conduct
will cause harm to the plaintiff;
12. any potential indeterminacy of liability;
13. the nature and consequences of any action that can be taken to avoid the
harm to the plaintiff;
14. the extent of imposition on the autonomy or freedom of individuals, including
the right to pursue one’s own interests;
15. the existence of conflicting duties arising from other principles of law or
statute;
16. consistency with the terms, scope and purpose of any statute relevant to the
existence of a duty;
17. and the desirability of, and in some circumstances, need for conformance and
coherence in the structure and fabric of the common law
* Sullivan v Moody (2001) 207 CLR 562
High Court rejected Caparo test, which explicitly required a consideration of 'fair, just
and reasonable'
'Different classes of case gave rise to different problems in determining the
existence and nature or scope, of a DOC'
Caveats of the 'Salient Features' Approach
Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 48 WAR 376, (Murphy JA
and Edelman J)
There is an 'inherent indeterminacy' in the salient features approach
• difficult to predict matters that might be salient
• weight given to different factors

An incremental approach, where reasoning proceeds by reference to analogous cases.

4th Element Defences
Contributory Negligence and Voluntary Assumption of Risk
Defences must be pleaded by D, if successful, it negate or reduce D's liability to P.
Contributory Negligence: failure of P to take reasonable care for their own safety or
interests
• D BOP - despite risk of injury created by D's conduct, P failed to take reasonable
care to themselves & this failure caused damage to P (at least in part)
• provided causal connection (3) with harm, CN leads to reduction of the damages
entitlement
• effect governed by statute

Voluntary Assumption of Risk (volenti non fit injuria): a complete defence; D BOP 3
elements on balance of probability
1. P knew the facts constituting the danger/risk
2. appreciated (or subjectively understood) the danger/risk inherent in the fact
situation
3. P freely & willingly encountered the danger/risk
📜 Governed by legislative changes, reversing the onus of proof with respect to certain
elements of 'obvious risk'
Effect of P's Intoxication or Illegal Conduct
In VIC (Wrongs Act 1958 (Vic) ss 14F, 14G), states that P's intoxication or illegality must
be considered in assessing the SOC owed to the P
• but preserves judicial discretion
In NSW (Civil Liability Act 2002 (NSW)), strict provisions requiring courts to respond by
relieving D of responsibility
Vicarious Liability
VL is not itself an element of TON (& applies beyond TON), but a loss distribution
mechanism. If applicable
• an employer (or principal) will be made strictly liable for the tort of their employee
(or agent)
Requirements
1. the person who is neg must be an employee rather than an independent
contractor, there is formal, written, comprehensive contract in place, 'established
principles of contractual construction' apply Construction, Forestry, Maritime,
Mining and Energy Union (CFMMEU) v Personnel Contracting Pty Ltd (2022) 298
ALR 404
a. In absence of such agreement, 'multifactorial approach' applies
2. the employee must have been acting in the course of employment (and not be a
'stranger' to that employment) when they committed the careless act or omission
(assuming the tort at issue is negligence)

Damages Assessment
A fundamental principle at CL is restitutio in integrum: to restore the P to their position
b4 the tort
• lump sum award is a once-and-for-all-time assessment (moderation & fairness)

The quantum of damages is not based upon degree of carelessness of D, but

determined by who the P was, is, and will be:
• Who was this injured person before the tort -- their job & interests?
• Who would this injured person have been in the future had they not been injured by
the D's tort? What future work & interests would they have had?
• Who is this injured person now, after the tort? As at the date of trial, what is their
job and capacity?
• Who will this injured person be in the future? What sort of job will they have and
what is their future capacity?
Compensation:
1. Future Earning Capacity: Tort destroys/diminishes an existing capacity,
compensated by having regard to P's future earning capacity (arithmetic
calculation)
2. Loss of Amenities (loss of enjoyment of life): no market value
3. Physical pain & suffering
4. Additional Needs: medical care (past & future), special equipment