LAWS623 – Law of Torts
StudName: Davine Jansen – StudID.1091100
LAWS623 – LAW OF TORTS
Alternative end-of-semester time-constrained assessment
SEMESTER 1 2020
Garth v Martha
In many negligent cases the matter about which the parties are likely to be in dispute is not
whether the relationship between them is such as to give rise to a duty or whether the
damage is too remote, but whether the defendant has been careless or “negligent”. (Stephen
Todd et al, 2019)The tort of negligence concerns itself with the legal duty of care regardless
whether there was a contractual relationship between parties. The court also seek to limit
the risk of exposing defendants to liability in unspecified amount for an unspecified time to
an iunspecified class i.e. don’t open the floodgates.
The first issue is whether Martha owed Garth a duty of care. In Donoghue v Stevenson 1Lord
Atkin’s rule established two aspects. Firstly, the notion of foreseeability: “You must take
reasonable care to avoid acts or omissions which you can reasonably foresee would be likely
to injure your neighbour” and secondly, the neighbour principle:” Who, then, in law is my
neighbour? Persons who are so closely and directly affected by my act that I ought reasonably
to have them in [mind]…when I [act].”
In order to succeed in an action of negligence, Garth must prove that Martha: a) owes him a
duty of care; b) breached that duty; c) that the breach caused the harm (causation element)
and that; d) the harm to the plaintiff was not so remote from the defendant’s breach as to
make it undesirable to compensate the plaintiff for reasons of social policy or economic
efficiency (remoteness element).
In McCarthy v Wellington City Council 2it is argued that you can be held liable for a tort i.e.
called “bridge of statutory duty”. A statute creates a particular duty which you can sue for in
common law if the statute itself does not provide a particular remedy. it can be implied that
you can sue in tort for any losses that you incur because somebody else doesn’t comply with
the statute.
Martha had a slight headache, felt a bit nauseous and was having difficulty in focussing, but
she’s unaware of what has happened to her (in that she suffered a minor stroke) she
continued to drive. Under the Land Transport Act 1998 S 8 the provision states that “drivers
not to be careless or inconsiderate.” Her reactions have been slowed and she is unable to
judge speed or distances. Her car was travelling at 110km/ h when it veered towards the
middle of the road and momentarily crossed the centre line. Under S 11 (a) The provision
states that “persons may not drive or attempt to drive while impaired…”. Martha should have
1
2
Donoghue v Stevenson [1932] AC 562
McCarthy v Wellington City [1966] NZLR 481 (CA)
LAWS623 – Law of Torts
StudName: Davine Jansen – StudID.1091100
reasonably foreseen that her conduct would be likely to injure or cause harm. She did not
stop her vehicle, but continued driving.
Although Martha owed a duty of care as she was driving impaired and recklessly. Her driving
was reasonably foreseeable and likely to cause injury or harm to other road users. In
McCarthy v Wellington City Council the court ruled that the higher the degree of risk the more
serious the breach. The likelihood that the duty might extend to a group of people i.e. road
users, at the least are beyond the immediate because of the degree of risk Martha was
exposing the road users to. In Hughes v Lord Advocate the court ruled that “Even if the loss
or harm is not itself foreseeable, liability may arise provided the actual loss falls with a
“foreseeable class of harm”. Garth was not one of the road users (class) at the time.
On the other hand, a chain of events occurred when Paul was transporting pigs owned by
Garth. Paul swerved and slammed his breaks, resulting in the lorry rolling over and the back
gates bursting open and the pigs escaped. Under S 9 of the Act states that “Loads transported
by vehicles to be secured” – A person operating a motor vehicle on a road, and any person
loading that vehicle, must ensure that any load carried in or on the vehicle, or on a vehicle
being towed by the vehicle driven by the operator, is secured and contained in such a manner
that it cannot fall or escape from the vehicle.” Whether or not the harm was too remote i.e.
scale of liability and whether the sequence of events caused the consequences is determined.
Under S 42 (1) of the Act it states that “Failure to secure load – A person operating a motor
vehicle on a road, and any person loading that vehicle, commits an offence if the person fails
to ensure that any load carried in or on the vehicle, or in or on a vehicle being towed by the
vehicle driven by the operator, is secured and contained in such a manner that it cannot fall
or escape from the vehicle”.
Martha cannot be held liable because Garth contracted the transporting of the pigs to Paul.
Although there is no employer-employee relationship between Garth and Paul there can be
no vicarious liability. Garth can hold Paul liable as Paul is self-employed and acted as a
contractor for Garth.
Hamish v WDC
The issue is whether WDC (Deirdre’s employer is vicariously liable for the accident and loss
caused by Deirdre, an employee.
Deirdre is employed by the Warkworth District Council as sanitation engineer. Deidre decided
to meet Brian over lunch and she goes off route to meet with him. Enroute she came across
the scene of the accident involving Paul. Under S 7 ss (1)(2) the provisions state that “Drivers
not to be reckless or dangerous – (1) A person may not drive a motor vehicle, or cause motor
vehicle to be driven, recklessly; and (2) A person may not drive a motor vehicle, or cause a
motor vehicle to be driven, at a speed or in a manner which, having regard to all the
circumstances, is or might be dangerous to the public or to a person”. She is distracted by the
overturned lorry, and fails to slow down, applied brakes and takes the bend too fast. Under S
10 of the Act it states that “Road users and others to comply with ordinary rules and
emergency rules – A person must comply with the rules”. Deirdre failed to slow down and
took the bend too fast. Under s 6 (1) of the Act it states that “Vehicles to be safe and operated
in compliance with rules – A person may not operate an unsafe motor vehicle on a road.”
LAWS623 – Law of Torts
StudName: Davine Jansen – StudID.1091100
When Deirdre tried to apply the brakes, nothing happened. Under S 79J ss (a)(ii)(ii) and (b)of
the Act it states “Liability of employers and principal – If an offence is committed against this
part by a person as the employee, agent or contractor of another person, that offence must
be treated as having been committed by both persons, whether or not it was done with the
other person’s knowledge or approval, if it is proved that- ss (a)(i) the other person knew, or
could reasonably be expected to have known, that the offence was to be, or was being,
committed; and (ii) failed to take steps that were reasonably practicable to prevent the
commission of the offence; and s (b) the other person failed to take the steps that were
reasonable in the circumstances to remedy the effects of the act or omission that gave rise to
the offence”. Deirdre used the company vehicle outside of normal work responsibilities and
smashed into Hamish’s Porsche. WDC can hold Deirdre liable for the damages caused.
However, Hamish can sue Warkworth City Council for vicarious liability because Deidre is an
employee of WDC. As for his stolen money from his jacket pocket, the theft was unlikely
foreseeable by Deirdre at the time of the breach of duty. Hamish is owed a duty of care by
WDC alongside Deidre’s duty. Hamish can prove sufficient relationship i.e. employer and
employee relationship because Deirdre used the company vehicle. He can also prove that,
although she took an unauthorised detour during her lunch, Deirdre was acting within course
and scope of her employment and WDC will still be liable. As for the stolen money, there
might be a legal case but no practical case against the thief because the thief is not available
to be sued.
Fran v Gentec
The issue is whether Fran can sue Gentec for negligence which caused economic loss. Fran
will have to prove all the elements of negligence to bring action against Gentec.
In Anns’ the court held that the council may be liable in negligence, but in limited
circumstances. The relevant legislative provisions with regard to inspection did not place a
duty on the council to inspect the walls, but did allow it the power to, if it considered
inspection necessary. Therefore, failing to inspect would not render the council liable unless
it was considered that it had failed to properly exercise its discretion to inspect and that they
had failed to ensure proper compliance with building regulations. If inspections were carried
out, the council retained discretion as to the manner of the inspections. If this discretion was
not genuinely exercised, the council may be liable in negligence. The claim was not statute
barred, the limitation period running from the date at which the dangerous state of the
property became apparent.
Fran will have to prove that Gentec did not consider her business as they took two weeks to
fully restore the electricity to the area. Fran will have to prove that liability lies with Gentec
as the pole owner if Gentec did not follow the correct processes for inspections. The ‘but for’
test would establish whether the harm was caused by the misconduct of Gentec in respect of
maintenance. Based on Anns’, Fran will not be able to establish that a duty of care was owed
to her unless she can show who is responsible for the maintenance of the pole and how often
it should be inspected.3
3
Anns v Merton London Borough[1978] AC 728
LAWS623 – Law of Torts
StudName: Davine Jansen – StudID.1091100
Bernie v WDC
The issue is whether the economic loss that Bernie’s business suffered was caused by Deidre’s
negligent behaviour when she crashed into the pole and caused a power outage. There must
be a link between Deirdre’s negligent behaviour and ensuring loss is sufficiently proximate so
as to be reasonable that WDC should bear the loss.
In Hughes v Lord Advocate 4the court held that the kind of harm not how the harm occurred
that was foreseeable and therefore the defendant can be held liable.
Bernie can argue that if the accident didn’t happen, the pole would be intact regardless of
how old and in what condition it is and that they would still have continued to have power.
Bernie can argue that Deirdre’s acts was the probable cause of the loss – on the balance of
probabilities (51%). Deirdre’s breach is the only cause of the loss suffered. However, Gentec
is the owner of the pole and therefore also a negligent possible defendant. Each sufficient
condition may be treated as an independent case e.g. whether Deirdre increased the risk and
made a material contribution to harm – McGhee principle. In statute, exceptional cases are
used when it cannot be established what caused the harm. The extend of the damage was
foreseeable i.e. the accident caused the crash into the pole which caused the power outage
and the loss. WDC can be held vicariously liable for economic loss because Deirdre is
employed by WDC i.e. employer-employee relationship. However, the loss suffered is too
remote from Deirdre’s negligent act and it would be unfair to hold WDC liable for the loss
suffered by Bernie.
4
Hughes v Lord Advocate [1963] UKHL 1