Nb: remember loss of chance
Defences
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DRA (dangerous recreational activity)
OR (obv. Risk)
IR (inherent risk)
CN (contributory negligence) (5r s9LRMPA joclyn, pennington)
Risk Warning
8 Categories of Duty of Care
8.1 Atypical Plaintiffs
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
A defendant is not required to look out for atypical plaintiffs (blind case?)
o Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48
 Bath salts
 Girl injured due to sensitive skin
 “the mere fact that abnormal persons exist ... does not alter the general
standards by which ... duties are established... Persons who trade in and
supply ordinary [consumables] ... are ... subject to no duty to issue warnings
... to persons who may be allergic to them” @ 52, Jordan CJ
o Haley v London Electricity Board [1964] 2 QB 121
 Hole marked for sighted
 Blind man missed the markings, fell into hole
 Was “reasonably foreseeable”
If an atypical plaintiff is injured in a manner that a typical plaintiff would have been, he/she
will be compensated for all damage, whether or not a typical plaintiff would have suffered
the same injury
8.2 The Unborn Child
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8.2.1

foetus has no legal identity before birth
o fathers petition on behalf of foetus as a human denied
 Attorney General (Qld) (Ex rel Kerr) v T (1983) 46 ALR 275
 Marriage of F & F (1989) FLC ¶92-031
Law does recognise that foetus will become human
Thus, a foetus is owed a duty of care
o Watt v Rama [1972] VR 353
Before conception
D can be liable to a child not yet conceived
o X and Y v Pal (1991) 12 NSWLR 26
 Obstetrician did not test for syphilis
 Court held that duty was owed to current foetus and any future unborn
child in subsequent pregnancy
o Extended in: Kosky v Trustees of the Sisters of Charity [1982] VR 961
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Bad blood transfusion
Kid, born 8 years later, subsequently had a blood issue
Court held, because of Watt v Rama, that a duty was owed
8.2.2

Ex Utero
Duty owed to foetus, ex-utero, limited to not damaging the future baby, not to warning the
mother re: terminating pregnancy
o Waller v James [2002] NSWSC 462
8.2.3

In Utero
Pregnancy is reasonably foreseeable, therefore a duty of care is owed
o Watt v Rama [1972] VR 353
 Car crash
 Foetus injured
 Held: duty of care exists to unborn child
o Lynch v Lynch (1991) 25 NSWLR 411
 Mum crashed car negligently
 Injured foetus
 Held: duty exists in car crash cases
o Bowditch v McEwan (2002) 36 MVR 235
 Car crash cases only
 Driver owes a duty to passengers
 Foetus is a passenger, incidental that foetus is in mum
8.3 Other ‘pre-natal’ torts: wrongful life and wrongful birth
8.3.1
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8.3.2
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Wrongful birth
Parents suing doctor for not warning about the child’s congenital deformation
Section 70 CLA  s applies to
o 1. All civil cases involving birth (tort, contract, statute etc)
o 2. Not for pre-natal personal injury
o 3. Excluded liability in s3B still exluded
 Bar s3(1)a?
Section 71 CLA  damages limited to
o 1. Cannot award damages for
 A) cost of raising child, (past-pres-future)
 B) lost earnings in maintaining child
o 2. Does not exclude costs for caring for disability caused by the disability
NB: this part of the CLA was not based on Ipp rept.
Wrongful life
Child’s right to sue
o WOW that would be demoralising, suing the doctor for not aborting you
Harriton v Stephens (2004) 59 NSWLR 694
o Issue: negligence? Since if doctors would have not acted negligently, appellant
would not have been born
o
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Held:
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Parents have right to sue, not kids
This case was not in line with societal values
No damage shown (since non-existence is worse than life without
disabilities)
Harriton v Stephens (2006) 226 CLR 52
o Held: claims of wrongful life are not actionable in Australia
o Because nature of damage is not legally cognisable (disability v non-existence)
Waller v James (2006) 226 CLR 136; [2006] HCA 16
o IV
o Did not scan for downs syndrome
o Held: wrongful life not actionable (no duty of care found)... ? As per Harriton
8.4 Mental harm/nervous shock ss 27-33 CLA
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
Type of something that was negligent
o Act
o Words
o Inaction
History  see p 356-8
P453 L&H– cates & GIO re: mental injury defn 363 Stuhmcke
Re: gov’t
CLA Part 3 – Mental Harm
o S27 - definitions
 Consequential  mental harm due consequence of injury (i.e. Arab chick
broken arm haircut divorce)
 mental harm  “impairment of a person’s medical condition”
 pure mental harm  =/ consequential
o S28 – application (s29 to civil, rest to rest, parts excluded in 3b still excluded)
o S29 – personal injury arising from mental or nervous shock
 Personal injury can include nervous shock
o S30 – limitations (regarding witnessing victim/act)
 Annette’s, fishwife
 2. Liability only if a) was seen [not including aftermath] b)plaintiff is close
member of family
 5. Close member of family
 Parent
 Spouse
o Married or de-facto
 Child
 Sibling
 3. Contrib. Neg. Still applies
 4. Does not override other sections of act?
o S31 – requisite for pure mental harm to be a recognized mental disease
o S32 – duty of care for mental harm (Annette’s etc.)
 1. DUTY NOT OWED UNLESS
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 a person of normal fortitude
 Within the circumstances (modified ordinary person test)
 MIGHT
 Suffer a recognised mental illness if reasonable care was not taken
2. Re: pure mental harm  circumstances may include
 Whether harm was caused by sudden shock
 Whether P witnessed the death/injury
 Nature of relationship between P & V
 P’s relationship w D
3. Re: consequential  circumstances may include
 Personal injury
4. Does not require court to disregard D’s knowledge (ought to have known)
of P’s fortitude
8.5 Rescuers
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Good Samaritan rule
o Unless gross negligence
CLA Part 8 – Good Samaritans
o S56 – Defn
 “A person who, in good faith and without expectation of payment or other
reward, comes to the assistance of a person who is apparently injured or at
risk of being injured”
o S57 – Protection
 No liability during emergency
 Ss (2) Does not affect vicarious liability
o S58 – Exclusions
 Part 8 Does not protect if:
 Ss (1) Samaritan caused injury/danger
 Ss (2) Samaritan is drunk & failed to exercise reasonable care/skill
 Ss (3) Samaritan is pretending to be a health care official
 Donde gross negligence?
8.6 Occupiers liability
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Duty for everyone ...
Mitigated by risk warning... pending effective via legislation
Zaluzna
o Create duty for occupier at all times if foreseeable
o No longer need to fit into a category (i.e. invite, illegal entrant, etc.)
Thomson v Woolworths
o “use and nature of occupation” relevant =/physical but rather use
Standard of care
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Modbury p395
o Car-park robbing w/out light
o
No duty of care to control illegal acts of third parties..? Since is not under the control
of D
9 Week 9 – Pure Economic Loss
9.1 Preparation Q’s
9.1.1
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What is the effect of P4 of the CLA?
Part 4 is re: proportionate liability
o Ss34(1)a this part applies to pure economic loss
o S34A – where protection is not afforded
 1(a) when the concurrent wrongdoer had intent to cause eco loss
 1(b) when the eco loss was caused by fraud
o Ss35(1)a – damages limited by D’s responsibility for damage
o S35A – D has a responsibility to inform P of concurrent wrongdoers
o S36 – P has to recover damages from concurrent wrongdoers – not D
9.1.2
Explain the concept of pure economic loss. What distinguishes this category of the
duty of care from others?
Definition
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Economic loss which is not consequent upon any physical injury to person or property (S&S
p380)
Duty of care
Ie. CALTEX and williamsted
Hill v Van Erp
Weller v Foot & Mouth Disease Research Institute
Bryan v Maloney (relies on prox.)
Hawkins v Clayton
Perre v Appand (’99)
NB: McHugh J P400
Woolcock (’04)  HC
Johnson & Tiles (’03)  application of Perre & Woolcock (vic. Supreme court)
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P must prove that the D owed P a duty of care not to cause pure economic loss
Very uncommon to extend on this duty because of policy considerations
o indeterminate liability (See US case Ultramares Corp v Touche, Niven & Co (1931)
174 NE 441),
o
o
overlap w contract (Perre v Appand Pty Ltd (1999) 198 CLR 180 [that pure eco loss
should be protected against via contract ... i.e. warranties]),
liability for lawful commercial activity
9.1.3
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What is the relationship between pure economic loss and negligent misstatement
Negligent misstatement often causes pure economic loss
9.1.4
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What does P have to prove to succeed in a case of pure eco loss?
That D owed a duty to not cause pure eco loss
9.1.5
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For Negligent misstatement?
Traditionally, no duty of care (Hedley Byrne v Heller)
Yes in cases of special skill (MLC assurance Co Ltd v Evatt (1969) 122 CLR 556)
Requires reasonable reliance