LAW OF TORTS
LECTURE 4
Negligent Trespass
Negligence – Duty of Care
Greg Young
greg.young@lawyer.com
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:
–
–
–
–
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
• It involves the three elements of
•duty
•breach;
•resultant damage
Negligence: The Elements
Duty of care
Negligence
Breach
Damage
Negligence: The Early Cases
• Heaven v. Pender
• (Defective equipment supplied to plaintiff painter)
• 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
• Ginger beer-decomposing snail-P has shockgastroenteritis
• No privity of contract between P and D. Issue
was whether D owed P a duty
• Dicta of Lord Atkin
• 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
NEGLIGENCE
• 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
NEGLIGENCE: THE DUTY OF
CARE
• The dicta of Lord Atkin in Donoghue v Stevenson:
– 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.
– You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour/another
Negligence: (Duty of Care)
•The Duty of care is the obligation to avoid
acts or omissions which are reasonably
foreseeable to cause damage to another.
•When does one owe a duty of care?
•Whenever one is engaged in an act which
he or she can reasonably foresee would be
likely to injure another person, one owes a
duty of care to that other person
The Modern Requirements for
the Duty of Care
• Jaensch v. Coffey (1984) per Dean J. p587-8
• A duty situation would 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
• The existence of proximity between the parties
with respect to the act or omission
• Absence of any rule that precludes such a duty
What is Reasonable
Foreseeability?
•Reasonable foreseeability presupposes an
objective or a reasonable person’s standard
•The reasonable person is an embodiment of
community values and what the community
expects of a responsible citizen
•The concept allows us to evaluate D’s conduct
not from his or her peculiar position, but from
that of a reasonable person similarly placed
•Reasonable foreseeability is a question of law
Reasonable Foreseeability: Case
Law
•Nova Mink v. Trans Canada Airlines
[1951] (Air traffic noise causing minks to
eat their young ones-No foreseeability)
•Palsgraf v. Long Island R.R. Co. (1928)
(Railway guards helping falling passengerfireworks explosion causing injury to
plaintiff.-No foreseeability)
•Chapman v. Hearse (1961) (Car accident-Dr.
stops to help-gets killed by another vehicle-action
against D who caused initial accident- Foreseeability
upheld)
The Scope of Reasonable
Foreseeability
•United Novelty Co. v. Daniels (1949)
(Workers cleaning coin operated machine
with flammable substance-rat in machine
runs into fire place causing fire damage and
death-Foreseeability upheld)
• Jaensch v. Coffey (1984) (Car accident-spouse
goes to hospital to see injured partner-suffers
shock from what she sees and hears of
husband’s condition-action against D who
caused accident-Proximity-Duty)
Reasonable Foreseeability:
Established Category Of Duty of
Care
• 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]
“The duty which an employer owes is to each employee.
The relevant duty of care is engaged if psychiatric injury
to the particular employee is reasonably foreseeable”
Proximity
• Jaensch v. Coffey (1984) (Car accident-spouse goes to
hospital to see injured partner-suffers shock from what
she sees and hears of husband’s condition-action against D
who caused accident-Proximity-Duty)
• Gala v. Preston (1991) (Duty relationship between
parties engaged in an illegal enterprise-No proximity-No
duty)
• Nagle v. Rottnest Island Authority (1993) (P injured
while diving into a rocky pool- pool promoted and
operated by D-Proximity, Duty upheld)
• Held: the board, by encouraging persons to engage in an
activity, came under a duty to take reasonable care to avoid
injury to them and the discharge of that duty... require
that they be warned of any foreseeable risks of injury
associated with the activity so encouraged
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
– Hill v Van Erp (A unifying concept of proximity
described as “ambitious” per Dawson J; “of limited use
in the determination of individual disputes” per
Gummow J; and affording no real guidance “in
determining the existence of a duty of care in difficult
and novel cases” per McHugh J)
– Perre v Apand (Proximity was no longer the
“talisman for determining a duty of care” per McHugh
J; and “incapable of fulfilling, unaided, the function of
demonstrating the existence or absence of duty of care”
per Kirby J)
Proximity - Criticised
• Sullivan v Moody (2001) 207 CLR 562
Facts – In separate proceedings, fathers were denied access to their children as Dr Moody
(employed by the SA Dept of Community Welfare) incorrectly diagnosed sexual
abuse; The fathers sued in negligence for psychiatric injury.
Judgment – Appeals dismissed as no duty of care exists to protect a suspected abuser
from emotional distress
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”
Proximity: Unclear how it is to be
Applied Now?
• Perre –v- Apand: Although proximity is not a
universal test for duty of care, it is a concept which has
not been totally abandoned (per McHugh J)
• “Incremental Approach”
- Sutherland Shire Council –v- Heyman: per Brennan CJ
“develop incrementally and by analogy with established
categories”
- Perre –v- Apand: incremental approach adopted by McHugh J
• Incremental Approach criticised in Brodie –v- Singleton Shire
Council by Callinan J as retreating to a “safe haven”
DUTY CATEGORIES: To whom
is duty owed?
• One owes a duty to those so closely and directly affected by his/her
conduct that she ought reasonably to have them in contemplation as
being so affected when undertaking the conduct in question.
• Examples:
- Employer/Worker
- Driver/Other Road Users
- Doctor/Patient
- Consumers, users of products and structures
» Donoghue v Stevenson
» Voli v Inglewood Shire Council
»
Bryan v Maloney
– Users of premises etc.
»
Australian Safeway Stores v Zaluzna
DUTY CATEGORIES: To whom
is duty owed?
• One owes a duty to those so closely and directly affected by his/her
conduct that she ought reasonably to have them in contemplation as
being so affected when undertaking the conduct in question.
• Examples:
- Employer/Worker
- Driver/Other Road Users
- Doctor/Patient
- Consumers, users of products and structures
» Donoghue v Stevenson
» Voli v Inglewood Shire Council
»
Bryan v Maloney
– Users of premises etc.
»
Australian Safeway Stores v Zaluzna
Unborn Child
• The unborn child:
– The duty is not simply to take reasonable care in the abstract
but to take reasonable care not to injure a person whom it
should reasonably be foreseen may be injured by the act or
neglect if such care is not taken (Winneke CJ/ Pape J)
– 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)
Unborn Child
• Wrongful life cases
– Harriton v Stephens [2006] HCA 15 (9 May 2006) The
specific duty of care postulated was a duty upon Dr
Stephens to diagnose Rubella and then advise Mrs
Harriton to terminate the pregancy.
– 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 ”
Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [251 & 252] “Because damage constitutes the gist of an
action in negligence, a plaintiff needs to prove actual
damage or loss and a court must be able to apprehend
and evaluate the damage, that is the loss, deprivation or
detriment caused by the alleged breach of duty. ... In the
Court of Appeal, Spigelman CJ recognised that in cases
of this kind, to find damage which gives rise to a right to
compensation it must be established that non-existence
is preferable to life with ...
• A comparison between a life with disabilities and nonexistence, for the purposes of proving actual damage and
having a trier of fact apprehend the nature of the damage
caused, is impossible. ”
RESCUERS
• 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
• There may however exist a duty to rescue in master
servant relationships or boat owner and guest
relationships for instance
– Horsley v Macleran (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
– Note however the case of Sylvester v GB Chapman Ltd (1935) :attack by leopard
while attempting to put out a smouldering cigarette in straw
• ‘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
Unforeseeable Plaintiffs
•In general the duty is owed to
only the foreseeable plaintiff
and not abnormal Plaintiffs.
– Bourhill v Young [1943] AC 92
– Levi v Colgate-Palmolive Ltd (1941)
– Haley v L.E.B. [1965] AC 778
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
Duty of Care: Policy
• In novel cases, the Courts will not only apply
the test of “reasonable foreseeability” but also
consider “policy” considerations:
• Hill –v- Chief Constable of West Yorkshire
[1989] 1 AC 53 (the Yorkshire Ripper’s last victim not
owed a duty of care by investigating police)
• Sullivan –v- Moody (2001) 207 CLR 562
(suspected sexual assault offenders not owed a duty of
care to prevent harm by investigating community services
officers)
• D’Orta-Ekenaike –v- Victorian Legal Aid [2005]
HCA 12 (advocates’ immunity upheld)
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)