The Law of Torts
Negligence
Particular Duty Areas:
Abnormal Plaintiffs
Unborn Children
Mental Harm
Rescuers
S5 CLA
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“negligence" means failure to exercise
reasonable care and skill.
Negligence: The Elements
Duty of care
Negligence
Breach
Damage
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?
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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
General Principles: The CLA
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S 5B:(1) A person is not negligent in failing to take
precautions against a risk of harm unless:
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(a) the risk was foreseeable (that is, it is a risk of which the person knew or
ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would
have taken those precautions.
(2) In determining whether a reasonable person would
have taken precautions against a risk of harm, the court is
to consider the following (amongst other relevant things):
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(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
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)
 United Novelty Co. v Daniels 42 So. 2nd 395 Miss
1949
 Palsgraf v. Long Island R.R. Co. (1928) (Railway
guards helping falling passenger-fireworks 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)

[5] DUTY CATEGORIES: To
whom is duty owed?
 One owes a duty to those so closely and directly affected by
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his/her conduct that she ought reasonably to have them in
contemplation as being so affected when undertaking the
conduct in question.
Examples:
 Consumers, users of products and structures
Donoghue v Stevenson
 Grant v Australian Kitting Mills
 Bryan v Maloney
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Road users
 Bourhill v Young
Users and purchasers of premises etc.
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Australian Safeway Stores v Zaluzna
The Unborn Child

In general, a duty of care may be owed to P
before birth

Watt v. Rama: “the possibility of injury on birth to
the child was… reasonably foreseeable…On the
birth the relationship crystallised and out of it
arose a duty on the D…”
 X v. Pal: Duty to a child not conceived at the time
of the negligent act
 Lynch v. Lynch:Mother liable in neg to her own
foetus injured as result of mother’s neg driving.
( Per Gillard J in Watt v Rama)
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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
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
 Haley v L.E.B. [1965] AC 778
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Wrongful Birth Claims
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Claims by parents in respect of the birth of a child
who would not have been born but for the D’s
negligence.
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Vievers v Connolly (1995) 2 Qd R 325 (Mother of disabled
child born bec. Pl lost opportunity to lawfully terminate
pregnancy. Damages included costs for past & future care
of child for 30 years.)
CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost
opportunity to terminate pregnancy as a result of D’s neg
failure to diagnose pregnancy. NSW Ct of Appeal held claim
maintainable but damages not to include costs of raising the
chills as adoption was an option.
Melchior v Cattanach [2003] HCA Mother of healthy child
after failed sterilization procedure. Qld CT Appeal held
damages shld include reasonable costs of raising the child.
CLA Part 11 s71

In any proceedings involving a claim for the birth of a
child to which this Part applies, the court cannot
award damages for economic loss for: (a) the costs
associated with rearing or maintaining the child that
the claimant has incurred or will incur in the future,
or (b) any loss of earnings by the claimant while the
claimant rears or maintains the child. (2) Subsection
(1) (a) does not preclude the recovery of any
additional costs associated with rearing or
maintaining a child who suffers from a disability that
arise by reason of the disability.
Wrongful Life Claims

Claim by child born as a result of negligent
treatment by De of child’s parent.
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Bannerman v Mills (1991) ATR 81-079.
Summary dismissal of claim by child born with
disabilities as result of mother having rubella
whilst pregnant. Tort of wrongful life unknown
to common law
Wrongful Life Claims
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Edwards v Blomeley; Harriton v Stevens; Waller v
James (2002 ) NSW Supreme Court, Studdert J.
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No duty of care to prevent birth
Policy reasons -
1. Sanctity & value of human life
2. impact of such claim on self-esteem of disabled persons
3. exposure to liability of mother who continued with
pregnancy
4.Plaintiffs’ damage not recognizable at law - would involve
comparison of value of disabled life with value of nonexistence
5.Impossibility of assessment of damages in money terms taking non-existence as a point of comparison.
Abnormal Plaintiffs and
Particularly Sensitive Plaintiffs
To be liable, P must show that she/he was
foreseeable. In general the abnormal P is not
foreseeable
 There is a distinction to be drown between
the abnormal Plaintiff and the particularly
sensitive Plaintiff

Abnormal Plaintiffs
 In
general where D is negligent, D
takes P as he /she finds P. Any unusual
condition that aggravates the damage
cannot be used by D as a defence
 Haley
v. London Electricity Bd. A blind P
held not to be abnormal: D “ought to
anticipate the presence of such person
within the scope and hazard of their
operations”
Particularly Sensitive Plaintiff

Where P suffers damage because of a
particular sensitivity in circumstances
where D’s conduct is not considered a
breach, P cannot claim

Levi. V Colgate Palmolive
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“the bath salts supplied to P were innocuous
to normal persons… the skin irritation which
she suffered…was attributable exclusively to
hypersensitiveness”
CLA s 32 Mental harm--duty
of care
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(1) A person ( the defendant ) does not owe a duty of care to another
person ( the plaintiff ) to take care not to cause the plaintiff mental
harm unless the defendant ought to have foreseen that a person of
normal fortitude might, in the circumstances of the case, suffer a
recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section in respect of pure
mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a
sudden shock,
(b) whether the plaintiff witnessed, at the scene, a person being killed,
injured or put in peril,
(c) the nature of the relationship between the plaintiff and any person
killed, injured or put in peril,
(d) whether or not there was a pre-existing relationship between the
plaintiff and the defendant.
Defective Premises
In general the occupier of premises owes a
duty of care to persons who come on to the
premises
 While the notion of occupier's liability may
have developed initially as a separate category
of tort law, it now considered under the
general principles of negligence
 Zaluzna v Australian Safeway Stores
 Strong v Woolworths Limited [2012] HCA 5
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Occupiers’ Liability
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What are Premises?
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-Land and fixtures
-but Cts have used wide interpretations
including moveable structures eg:
scaffolding (London Graving Dock v. Horton
[1951] AC 737
Ships and gangways eg. Swinton v. China
Mutual Steam Navigation Co Ltd (1951) 83
CLR 553