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Table of Contents INTRODUCTION: NEGLIGENCE .............................................................................................................. 3

The Civil Liability Act 2002 (WA) ............................................................................................................................ 3 Elements of an Action in Negligence ......................................................................................................................... 4

DETERMINING A DUTY OF CARE ........................................................................................................... 8 Pre-Existing Categories .............................................................................................................................................. 8 Development of (and alternatives to) current approach to Duty of Care ............................................................. 9 Current approach to duty of care in Australia ...................................................................................................... 10

3.1 EXISTENCE OF A DoC - NOVEL FACT SITUATION ............................................................................... 10 3.2 SCOPE OF DUTY ........................................................................................................................................... 11 3.3 SCOPE: ILLEGALITY .................................................................................................................................... 12 4. SPECIAL CASES .............................................................................................................................................. 13

STANDARD OF CARE AND DUTY OF BREACH .................................................................................. 15 (A) DETERMINANTS OF BREACH .................................................................................................................... 15 (B) ESTABLISHING BREACH .............................................................................................................................. 16

STANDARD OF CARE: The reasonable person .................................................................................................. 16 BREACH OF DUTY .............................................................................................................................................. 17 1. the risk of harm was foreseeable s5B(1)(a) ........................................................................................................ 17 2. the risk of harm was not insignificant s5B(1)(b) ................................................................................................ 17 3. in the circumstances, a reasonable person would have taken precautions against the risk s5B(1)(c) ................ 17 (a) Probability of Harm: s5B(2)(a) ......................................................................................................................... 17 (b) Likely Seriousness of Harm s5B(2)(b) ............................................................................................................. 17 (c) Burden of Taking Precautions s5B(2)(c) .......................................................................................................... 18 (d) Social Utility s5B(2)(d ) .................................................................................................................................... 18 (e) Other factors (common law) ............................................................................................................................. 18 (f) Balancing the factors: ........................................................................................................................................ 19

(C) PROOF OF BREACH ...................................................................................................................................... 21 (D) PARTICULAR BREACH OF DUTY SITUATIONS ................................................................................... 22

Medical Negligence ................................................................................................................................................ 22 Public Bodies and Officers ..................................................................................................................................... 22 Occupier's Liability ................................................................................................................................................ 23

CAUSATION .................................................................................................................................................. 24 (A) DAMAGE ............................................................................................................................................................ 24 (B) FACTUAL CAUSATION .................................................................................................................................. 25

1. ‘But for’ test / necessary condition ..................................................................................................................... 25 2. Proving causation ............................................................................................................................................... 25

(C) LEGAL CAUSATION: SCOPE OF LIABILITY ......................................................................................... 26 3. Intervening events (novus actus interveniens) ................................................................................................... 26 (a) Plaintiff’s own conduct ..................................................................................................................................... 26 (b) Conduct of third parties .................................................................................................................................... 27 (c) Extraordinary inanimate events or coincidences .............................................................................................. 27 4. Remoteness ......................................................................................................................................................... 28

MENTAL HARM .......................................................................................................................................... 30 A. History of Mental Harm ...................................................................................................................................... 30 B. Modern Common Law Position on Mental Harm ............................................................................................ 32 C. Liability Under the Civil Liability Act 2002 (WA), Part 1B ........................................................................... 33

ECONOMIC LOSS ....................................................................................................................................... 35 1. INTRODUCTION to Economic Loss ................................................................................................................. 35 2. RELATIONAL ECONOMIC LOSS - Negligent Physical Conduct Causing Pure Economic Loss ............. 35 3. NEGLIGENT STATEMENTS ............................................................................................................................ 36

DEFENCE: CONTRIBUTORY NEGLIGENCE ....................................................................................... 39 Introduction ............................................................................................................................................................... 39

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(a) Common law .................................................................................................................................................. 39 (b) Statute ........................................................................................................................................................ 39

Nature of contributory negligence .......................................................................................................................... 39 (a) No need for duty of care ................................................................................................................................... 39 (b) Standard of care ................................................................................................................................................ 39 (c) Causation and remoteness ................................................................................................................................. 41

Apportionment .......................................................................................................................................................... 41 DEFENCE: VOLUNTARY ASSUMPTION OF RISK ............................................................................. 42

Introduction ............................................................................................................................................................... 42 Volenti – Three Requirements: ................................................................................................................................ 42

(a) Knowledge of risk ......................................................................................................................................... 42 (b) Voluntary acceptance ................................................................................................................................ 42 (c) Damage must result from risk ........................................................................................................................ 43

Volenti Examples: ..................................................................................................................................................... 43 Employer-employee cases ...................................................................................................................................... 43 Driving cases .......................................................................................................................................................... 43 Sport and recreation cases ...................................................................................................................................... 43

DEFENCE: ILLEGALITY ........................................................................................................................... 45 Plaintiff involved in illegality ................................................................................................................................... 45 Both parties involved in illegality ............................................................................................................................ 45

DEFENCE: STATUTORY IMMUNITIES AND EXCLUSIONS ............................................................ 46 LIABILITY FOR HARM DONE BY OTHERS ......................................................................................... 47

INTRODUCTION .................................................................................................................................................... 47 VICARIOUS LIABILITY ....................................................................................................................................... 48

(1) Defendant and actual wrongdoer must have been in relationship of Employer and Employee ....................... 48 (2) Conduct in course of employment and within scope of employee’s authority ................................................. 49 (3) Act or omission of actual wrongdoer must have been wrongful. ..................................................................... 51 Liability of an Employer for the Wrongs of An Independent Contractor .............................................................. 52 Vicarious Liability in Principal and Agent Relationships ...................................................................................... 52

PERSONAL LIABILITY ........................................................................................................................................ 52

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INTRODUCTION: NEGLIGENCE 1. Development of duty of care as an element

1.1. Pre- Donoghue v Stevenson Heaven v Pender (1883) 11 QBD 503 • FACTS:

o The Defendant [Pender] owned a dry dock. o The Plaintiff [Heaven] was painting a ship docked at the Defendant's dock. He was employed to do so by the

shipowner (no contract with Defendant). o The Dock was defective and the Plaintiff was injured while painting the ship. o The Plaintiff sought to sue the Defendant for the defective dock.

• HELD: o Mast of the Roles à In a scenario where ordinary care or skill is required to prevent injury to the plaintiff, a

duty of care exist even in the absence of a contract. o The Plaintiff wins on the basis that he was owed a duty of care which was breached.

1.2. Foundation Stone: Lord Atkin in Donoghue v Stevenson

Donoghue v Stevenson [1932] AC 562 • FACTS:

o The Plaintiff (Donoghue) received a ginger beer bottle bought for her by a friend from a cafe. o She drank some of it, and found out that there are remains of a decomposed snail in it. o She suffered great mental shock and severe gastro--enteritis. o The drink was manufactured by the Defendant (Stevenson).

• HELD: o Atkins LJ: § Neighbour Principle à Duty of care is owed to “Who is my neighbour? … persons who are so closely and

directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question ...”

§ Reasonable foreseeability of harm à "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

• General principle adopted in Australian authority: Grant v Australian Knitting Mills [1936] AC 85 The Civil Liability Act 2002 (WA) • Introduced in response to the “insurance crisis” (increasing price of insurance due to 9/1, HIH Insurance Group

etc.) • Statutory regime (not a code) and pre-supposes the pre-existing common law regarding negligence HOWEVER

where there is a statutory provision this always overrides the common law (Neindorf v Junkovic).

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Elements of an Action in Negligence 1) Duty of Care 2) Breach of Duty à S5B CLA. 3) Causation à S5C CLA. 1) Duty of Care • In order to make a successful claim, […] must first establish that a DOC existed. Q1. Is this a pre-existing category (PEC)? • If PEC, only need to establish relationship �

o Employer/employee (Hamilton) o Driver/Passenger (Imbree) o Driver/Other Road Users (Chapman) o Manufacturer/Consumer (Setlsam) o Doctor/Patient (Rogers) o Teacher/Student (Roman Catholic Church) o Occupier/Entrant (Zaluzna (pre-OLA); Thompson)

§ Occupier’s Liability Act − Definition of occupier: s2 à occupier of premises means person occupying or having control of land

or other premises à premises includes any fixed or movable structure, including any vessel, vehicle or aircraft

− OLA extended duty to all entrants à s5(1): occupier is required to show care as in all circumstances of the case is reasonable to see that that person will not suffer injury or damage

+ o Scope (see below)

OR Q2. Is this a Novel Fact Situation (NFS)? • If NFS, need to establish:

o (2.1) Reasonable Foreseeability § First question is whether the D should/ought [prospective inquiry] to have RF that their conduct may

result in damage of some kind to P or a class of people of which P is a part of: San Sebastian

− How probable is foreseeable? “[A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable”: Tame applying Wyong Shire Council v Shirt

− Precise sequence of events does not need to be foreseeable, only the risk of injury to a specific class

of people: Chapman v Hearse

− How to determine “class of people”? Apply Neighbourhood Principle. Ø Was the P “...so closely and directly affected by my act that I ought reasonably to have them in

contemplation”: Lord Atkin in Donoghue Ø You come under a duty only in respect of acts and omissions that you can reasonably foresee may

affect your neighbours - persons who are directly and closely affected by your acts: Tame + � o (2.2) Salient Features (Not exhaustive; and do not have to satisfy all of them: Caltex)

Such as: � − Vulnerability (e.g. Perre v Apand) �

o A plaintiff is vulnerable if he was unable of taking reasonable steps to protect himself from the negligent act. If a plaintiff could have taken reasonable actions to protect himself, a DoC will not be imposed.

o In Perre v Apand, the P’s business was vulnerable to D’s conduct because they were “not in a position to protect themselves against the effect of D’s negligence apart from insurance

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(which is not a relevant factor)”. P could not protect against effect of bacterial wilt (caused by D).

− Inconsistency with other laws (e.g. Sullivan v Moody)

o If a suggested DoC would give rise to inconsistent obligations (arising from statute), that would ordinarily be a reason for denying that the duty exists.

o In Sullivan v Moody, the D had professional/statutory duty (to report allegation that children had suffered harm) which was inconsistent with DoC towards P.

− Degree/Nature of Control of D (e.g. Graham Barclay Oysters) � o Did the defendant have sufficient control over the situation? Was it expected that they

would intervene or did have they assumed responsibility in any way? o In Graham Barclay Oysters, no DoC for council because they had no control over

contamination; no DoC for state because oyster industry was self-regulated (state had no direct control over regulatory practices).

− Indeterminacy issues (e.g. Sullivan v Moody) �

o DoC will only be imposed if liability does not become indeterminate. o Indeterminacy arises when the defendant would not be able to determine how many claims

might be brought against him or her or what their general nature might be. o In Sullivan v Moody,

− Knowledge (actual or constructive) by the D that conduct will cause harm (Caltex) − Assumption of responsibility of the D (Caltex)

+ o (2.3) Scope: �

§ Will the duty of care that exists in this particular circumstance extend to this individual situation? − “… whatever their scope, all duties of care are to be discharged by the exercise of reasonable

care. They do not impose a more stringent or onerous burden.”: Dederer (Gummow).

§ ILLEGALITY OF THIRD PARTY • DoC extends to illegality of third party ONLY is some circumstances

o Extends = Chomentowski, Adeels Palace = D had high level of control § P can show that D ought to have known facts requiring a direct action or

intervention that would have safeguarded the injured person from a foreseeable risk of harm

o Does not extend = Modbury Triangle = D had low level of control

• Modbury Triangle 2001 CLR o Facts: Video store employee working late, robbed and beaten; sued proprietor of car park -

alleged negligent in not leaving lights on � o Held: Occupier/Entrant is a PEC - issue is one of scope - does it extend to illegality of a third

party? No àinsufficient control

COMPARE TO: • Adeels Palace 2009 HCA

o Facts: Fight in night club; man went home, returned with gun, shot P’s; P’s sued club for negligence �

o Held: DoC is owedà Occupier failed to control access – it is not uncommon for anti-social behavior at nightclub therefore duty to hinder occurrence of such events § Distinguished from Modbury:

− D had ability to control who entered premises through door (unlike open car park in Modbury)

− Licensed premises: harm and anti-social behavior greater risk − Statutory obligations helped to establish DoC (Liquor Act: prevent disorderly conduct)

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§ JOINT ILLEGALITY OF THE PARTIES o Cannot owe DOC to a fellow criminal in course of criminal activity: Gala v Preston o UNLESS P withdrew compliance: Miller

§ Facts: P in Northbridge; stole car; older cousin drove - 9 passengers; D began driving erratically; P asked to get out twice; suffered severe injuries �

§ Held: DoC owed à P withdrew consent (per s 8CC: held to be unreasonable for P to take further steps).

§ OMISSION

o No Com Law duty to rescue: Stovin v Wise (Lord Nicholls) § NOTE: suicide + respect personal autonomy: Kirkland-Veenstra v Stuart; Jeansch v Coffey

(Deane) o EXCEPTION: If only Physician in small locality + could prevent severe damageà DOC: Lowns

v Woods

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2) Breach of Duty Q1. Identify the relevant standard of care

A. Identify the risk of harm (i.e. the risk of falling over log) B. Ask whether the risk was foreseeable AND not insignificant: s5B(1)(a)+(b) C. Ask what a reasonable person would do in response to the risk

i. Taking into account factors in s5B(2) and other relevant factors: s5B(1)(c) − (a) Probability of harm if care was not taken; � − (b) Likely seriousness of harm; − (c) Burden of taking precautions to avoid the risk of harm − (d) Social utility of activity creating the risk.

ii. Also note: provisions that apply if it’s an occupiers’ liability issue à Buss J in Smith: OLA 1985 (WA)

s5(4)

Q2. Did the defendant’s actions fall short of the standard of care? If so, breach has occurred. 3) Causation • s5C CLA Causation requires: �

o (1) Damage

o (2) Factual Causation § “Necessary condition”: s5C(1)(a) CLA § Proving causation

− Onus on P (s5D CLA) − P’s evidence of what they would have done (s5C(3) CLA)

o (3) Legal causation: • Type of damage was reasonably foreseeable / not remote (should liability of scope extend to P’s damage?)

− no novus actus − not remote

NOTE: • Start with CLA and move to common; elements interrelated - consider together: Neindorf

o NO SET APPROACH o Negligence suits often resolved by arguing by analogy

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DETERMINING A DUTY OF CARE Pre-Existing Categories • If have PEC, no need to discuss Donoghue - just discuss relevant case for category 1.1. Driver and other road user/s • A driver no matter how experienced, owes a duty of care to people both inside the car and other road uses: Imbree

HCA 2008 � Chapman v Hearse 1961 CLR • Facts: Mr Chapman injured in car accident due to his own negligence; Dr Cherry stopped to �help - killed by car

negligently driven by Hearse. � • Issue: Is it reasonably foreseeable that Cherry would have been affected by Mr Chapmans actions? � • Held: o It is reasonably foreseeable that driving negligently would result in someone stopping to �assist - therefore a duty

is owed � o A person who is negligent owes a duty to those around them who might be harmed; but also to those who might

rescue them - sufficient to be to a class of people, rather than a specific person � Imbree v McNeilly [2008] HCA 40 • Facts: Imbree allowed McNeilly, an inexperienced and unlicensed driver, to drive a four-wheel drive under

supervision. McNeilly caused accident which rendered Imbree a paraplegic. • Issue: To what standard of care should Imbree as a learner be held? • Held: o Learner driver held to same standard of care – that of the “reasonable driver” o "That standard of care is not to be further qualified, whether by reference to the holding of a licence to drive or

by reference to the level of experience of the driver." 1.2. Employer and employee/s • Employers owe a duty to their employees - employers exercise control over the workplace. A duty “to take

reasonable care to avoid exposing the employee to unnecessary risk of injury.” Hamilton CLR 1956 � o Non-delegable duty (duty to take care AND duty to ensure that care is taken by others) o Duty standard is not strict liability – however duty to take all reasonable precautions to eliminate all

unnecessary risks (high standard) o Duty protects physical and psychological injury

• Employer also has duty to protect from actions of a third party (e.g. criminal conduct)

o i.e. Chomentowshi v Red Garter Restaurant: employer breached duty of care by requiring staff member to walk through Redfern at night with money where staff member was attacked.

1.3. Manufacturer and consumer/s (Product Liability) • Duty of Care extends to manufacturer: Donoghue v Stevenson 1.4. Professional and client • Rogers v Whittaker (1992) 175 CLR 479 (doctor & patient) • Hill v Van Erp (1997) 188 CLR 159 (solicitor & client) • Geyer v Downs (1977) 138 CLR 91 (teacher/school authority & student) Rogers v Whittaker (1992) 175 CLR 479 • Facts: Cosmetic operation in good eye - no guarantee of restoring sight - P aware of this; R informed P of risks

but one; lost sight in both eyes. • Held: o R negligent in failing to inform of risk; P proved she would not have had operation if she was aware of the risk;

Therefore R owed Duty of Care to inform P about risks.

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1.5. Occupier and entrant (Occupiers’ Liability) • Lawful entrant upon the land of D establishes a relationship between them which of itself suffices to give rise to a

general duty of care on the part of the D to take reasonable care to avoid a foreseeable risk of injury to the P o i.e. Zaluzna 1987 CLR : customer entered Subway and slipped over

• Occupier’s Liability Act (OLA) - s5(1)-(4) o Definition of occupier: s2

§ occupier of premises means person occupying or having control of land or other premises § premises includes any fixed or movable structure, including any vessel, vehicle or aircraft

o Extended the duty to any entrant - standard of care may differ depending on entrant �

§ s 5(1) Subject to (2) & (3) occupier is required to show care as in all circumstances of the case is reasonable to see that that person will not suffer injury or damage �

§ s 5(2) Willingly assumed risk = duty to not create danger with deliberate intent of doing harm or to act with reckless disregard �

§ s 5(3) Committing offence or intention to commit = 5(2) duty owed � 2. Development of (and alternatives to) current approach to Duty of Care 2.1. Two-stage approach • Former UK Approach - Two Stage Approach - VERY BROAD �

o Anns v Merton London Borough Council [1978] AC 728 1) Sufficient relationship of proximity i.e. contemplation that carelessness of D is likely to cause damage to P � 2) Consider anything which ought to negative/reduce the scope of duty to class �

2.2. Three stage approach (adopted in the UK, but not Australia) • Current UK Approach - Three Stage Approach �- More cautious approach

o Caparo Test (Caparo Industries Plc v Dickman [1990] 2 AC 605) 1) Was it reasonably foreseeable to the alleged wrong-doer that particular conduct or an omission on its part

would be likely to cause harm to the person who has suffered damage or a person in the same position? � 2) Does there exist between the alleged wrong-doer and such person a relationship characterised by the law as

one of "proximity" or "neighborhood"? � 3) Fair, just and reasonable to impose duty of a given scope �

§ Pyrenees - attempted to adopt in Australia - Rejected in Sullivan “not proximity” � 2.3. Australia’s struggle to settle on an approach • Initially, Jaensch 1984 CLR:

o Facts: P claimed to suffer mental distress after witnessing husband’s injuries in hospital following motorcycle accident; �

o Held: Followed Caparo, need foreseeability and proximity (physical and circumstantial and causal relationship) �

• Changed approach (move away from proximity) in Hill v Van Erp 1997 CLR o Facts: Will deemed invalid due to the solicitor’s negligence; plaintiff could not inherit o Held: Dawson J à Proximity is a “useful means” to suggest that foreseeability is not sufficient, HOWEVER

proximity is not a necessary element for all duty of care cases. Solicitor was negligent - owed a duty to person to who benefit of will was intended. �

• Also doubted proximity test in Perre 1999 CLR o Facts: D had agreement with potato grower to grow particular type of potato; seeds sent contained bacterial

wilt; quarantine laws prevented exports from area so P could not sell potatoes o Held: All judges agreed that there was a duty of care HOWEVER no consistency in judges approach �

§ Kirby J - 3 stage framework incorporating foreseeability, proximity and policy (Caparo approach); § Gleeson CJ & McHugh J - suggested that the general rule was that no duty would exist but that certain

factors would allow for the development of exceptions (incremental approach: reasoning by analogy);

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§ Gaudron J - analogy with cases involving negligent misrepresentation § Gummow, Hayne & Callinan JJ’s - identified salient features and control mechanisms that would point to

a duty. NOTE: this approach was followed in latter cases. • FINAL WORD on proximity: Sullivan v. Moody [2001] HCA 59; (2001) 207 CLR 562

o Facts: Negligent investigation into claim of sexual assault. P’s son taken to sexual assault center in hospital; doctors concluded that children had been abused; CPS investigated and concluded children that were abused; criminal charge filed against P but later dropped. P suffered emotional distress from investigation.

o Held: P unsuccessful. HC held unanimously that: § Rejected foreseeability as the sole test of duty § Rejected proximity as the ‘additional limiting factor’ § Rejected decision-making based openly on policy (i.e. notions of “fairness”, discretionary judgements) § Determined that inconsistency with law of defamation (P had another option other than negligence),

incompatibility with other duties (doctors had mandatory reporting requirements), indeterminacy of liability (difficult to determine who specifically owed duty) = lead to the finding of no duty

3. Current approach to duty of care in Australia 3.1 EXISTENCE OF A DoC - NOVEL FACT SITUATION

§ Reasonable foreseeability and neighbourhood (Donoghue) plus consideration of salient features (Sullivan) 1) Foreseeability and Neighbourhood �

o Tame v New South Wales; Annetts v. Australian Stations Pty Ltd (2002) CLR § Held: Reasonable foreseeability and neighbourhood are inter-connected § McHugh J: Thus neighbour = person closely and directly affected = proximity. In my opinion, Deane J

arguably erred in Jaensch when he said that the neighbour requirement was "a substantive and independent one which was deliberately and expressly introduced to limit or control the test of reasonable foreseeability". It is true that reasonable foreseeability is not at large. You come under a duty only in respect of acts and omissions that you can reasonably foresee may affect your neighbours - persons who are directly and closely affected by your acts.

2) “Salient factors” and policy considerations • Includes:

o Nature of harm alleged (Caltex) � o Assumption of responsibility of the D (Caltex) � o Type of right defendant has infringed (e.g. Sullivan, Harriton) � o Nature of the relationship between D and P (e.g. Tame, Graham Barclay Oysters)

§ Proximity in physical, temporal or relational sense between P and D (Caltex) o Degree of control exercised by plaintiff in terms of risk to the P (Perre) �

§ Must be control over the risk that is foreseeable, not the situation � o Vulnerability of the plaintiff (Hill v Van Erp, Gifford, Perre) � o Need to preserve coherency of the law (Sullivan, Hill, Cran) � o Indeterminacy issues (Sullivan) � o Decisions of overseas jurisdictions � o Ethical and moral considerations, autonomy (Cole, CAL) � o Knowledge (actual or constructive) by the D that conduct will cause harm (Caltex)

• Not exhaustive; and do not have to satisfy all of them: Caltex 2009 NSW Third Parties + Intoxication: • Where a person makes a voluntary and deliberate decision to drink to excess, third parties will generally not owe a

duty of care to this person i.e. no duty (Cole, CAL) Cole v. South Tweed Heads RLFC (2004) ALR • Facts: P suffered injuries from being hit by car after P was intoxicated at rugby club; sued both driver and club for

allowing her to get intoxicated.

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• Held (HC): No Duty of Care on behalf of rugby club. o Gummow and Hayne JJ: P has personal responsibility: “All parties were adults, none of whom could be

expected to be ignorant of the intoxicating effects of the alcohol they voluntarily consumed” CAL No. 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA • Facts: P agreed with bar owner to keep keys; P demanded keys; P killed in car accident. Wife brought action in

negligence. • Held: No duty of care. May be duty on licence of service of alcohol in exceptional circumstances HOWEVER

not to keep keys. Also allowing duty here would contradict other rights such as right to freedom. Emphasis on duty of autonomy and self-responsibility.

3.2 SCOPE OF DUTY • Once existence of duty is determined, next look at SCOPE of duty • NOTE: Relevant to both pre-existing categories and novel fact situations • Reasonable foreseeability & salient features will both be considered in determining scope � • Does scope of the duty extend to particular situation?

o All duties to be exercised with reasonable care - scope depends on circumstances of case/relationship-in-question: Dederer 2007 ALR � § “...duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and

that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.” Per Gummow J

o Scope (law) often confused with breach (fact): Vairy 2005 CLR � o Identifying scopes requires consideration of among other things, nature of damage suffered, and whether

damage was caused by a 3rd party or results from pure omission by D: Neindorf 2005 ALR § Facts: P tripped over at garage sale �

• Defining the scope (how broad/narrow?): o Duty is broadly “to take reasonable care” – the failure to take proper look-out may breach that duty of care

HOWEVER should not define the duty too narrowly or into sub-categories i.e. “duty to keep a proper look-out”: Vairy 2005 CLR McHugh J

o LANDLORD Scope: Jones 2005 CLR

§ Facts: Couple renting, son came to live with them; son walked into glass door damaging knee; complied with safety standards at time of installation, they had since been updated; there is no statutory duty to upgrade �

§ Held: DoC did not extend. − House not in a dangerous or defective state; Premises need to be fit for purpose; − Landlord has a DoC not to rent property with a serious known defect − Duty does not extend to getting an expert inspection - Scope found not to extend to this

relationship �

o PUBLICAN Scope: CAL No 14 2009 HCA § Facts: P gave keys to bar owner, bar owner gave them back once P aggressive; P died in crash § Held: DoC did not extend.

− Do publicans owe DoC not to serve customers who past certain point of intoxication? Yes. � − Is there a duty to take positive steps to ensure the safety of customers after they leave the premises?

No.

o OCCUPIER Scope: Modbury Triangle v Anzil (2001) CLR § Facts: P sued D who owned shopping center; P had been attacked by three random men in car park of

shopping center. P argued that he was attacked as a result of D turning off lights in car park (negligence).

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§ Held: DoC did not extend. − Occupier (shopping center owner) does have a DoC to enterees of premises − Scope of occupier/entrance DoC relationship did not extend to occupier taking steps to prevent

attack by third party. 3.3 SCOPE: ILLEGALITY (1) Illegality of a third party

• DoC extends to illegality of third party ONLY is some circumstances o Extends = Chomentowski, Adeels Palace = D had high level of control o Does not extend = Modbury Triangle = D had low level of control

EMPLOYER/EMPLOYEE • Chomentowski v Red Garter Restaurant (1970) WN (NSW)

o Facts: employer required staff member to walk through Redfern at night with money; staff member was attacked.

o Held: DoC is owed § employers must take reasonable care to prevent reasonable risks and IN THIS CASE there was a high

risk on injury and the employers actions created this risk (employer had high level of control) OCCUPIER/ENTRANT: • Modbury Triangle 2001 CLR

o Facts: Video store employee working late, robbed and beaten ; sued proprietor of car park - alleged negligent in not leaving lights on �

o Held: Occupier/Entrant is a PEC - issue is one of scope - does it extend to illegality of a third party? � § No - occupier/entrant is not one of those special relationships �

− Unlike Employer/employee relationship where high level of control exists − Same level of control does not exist - insufficient control �

COMPARE TO:

• Adeels Palace 2009 HCA o Facts: Fight in night club; man went home, returned with gun, shot P’s; P’s sued club for negligence � o Held: DoC is owed �

§ Occupier failed to control access – it is not uncommon for anti-social behavior at night �club therefore duty to hinder occurrence of such events �

§ Distinguished from Modbury: − D had ability to control who entered premises through door (unlike open car park in Modbury) − Licensed premises: harm and anti-social behavior greater risk − Statutory obligations helped to establish DoC (Liquor Act: prevent disorderly conduct) à NOTE:

statute does not always establish DoC (2) Joint illegality of the parties

§ Should civil law condone criminal behavior be allowing P who has engaged in criminal conduct with D? o No – unless P withdrew compliance: Miller

§ Miller 2011

o Facts: P in Northbridge; stole car; older cousin drove - 9 passengers; D began driving erratically; P asked to get out twice; suffered severe injuries �

o Held: DoC owed � § Generally, if involved in commission of offence, cannot claim civil compensation as there is no DoC

between two people who are both parties to a crime – HOWEVER P withdrew consent (per s 8CC, held to be unreasonable for P to take further steps) therefore DoC existed. �

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4. SPECIAL CASES Advocate’s immunity

§ Advocate’s immunity is that cannot sue a barrister for acts in court e.g. losing a case § D’Orta-Ekenaike 2005 ALR � o Facts: P claimed that Legal Aid barrister recommended that P plead guilty; P later acquitted; P sued

barrister for negligence. o Held: Advocate’s immunity for their conduct in/outside court was upheld in Australia - Otherwise would be

able to run case �multiple times (re-litigation) - Creates instability in judicial process; finality of decision is central to our system �

• Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA

o Held: Immunity did not extend to negligent advice that leads to the settlement of court proceedings. Liability for omissions • Law generally reluctant to impose liability for omissions. • Exceptions: �

o Medical nonfeasance (failure to act): Lowns 1996 AU § Facts: Boy had fit on holiday; sister went to nearby clinic and asked for help - doctor failed to attend;

Doctor claimed he never spoke to girl; Boy suffered brain damage � § Held: Found to be liable for omission �

− Professional misconduct (statute) found to include failure to attend within reasonable time � − Statutory obligation does not necessarily mean civil liability; However, does exist in establishing

that the omission was a civil liability − NOTE: this decision has been criticized and not necessarily followed

Liability of public bodies • Bodies given statutory power, may be subject to statutory duties - depends on the statute • Courts very reluctant to impose duty unless statute is very clear � • Graham Barclay Oysters v Ryan (2002) CLR

o Facts: Oysters contaminated with hepatitis; P (who contracted hepatitis) sued council and state o Held: No DoC

§ Factor of control is the key salient feature for a public body to determine if DoC exists. �However, the control here was too remote in a legal and practical sense, therefore no DoC �

§ “Likelihood of imposing an affirmative DoC...increases where the power is invested to protect the community from a particular risk and the authority is aware of a specific risk to a specific individual” − A failure to protect the community, where they have the power to do so and are aware of the

risk, may be negligence � § Gummow, Hayne and Gaudron: “Council exercised a much less significant degree of control over the

risk of the harm that eventuated. At no stage, did the Council exercise control, let alone specific or exclusive control, over the direct source of harm to consumers (oysters). No reliable test for contamination of oysters” � − i.e. insufficient degree of control �

§ Gummow, Hayne and Gaudron: Decision not to adopt more stringent tests was based on budgetary concerns...involves a fundamental governmental choice as to the nature and extent of the regulation of a particular industry � − government made policy decision to relinquish regulation

• Sydney Water Corp v Turano [2009] HCA

o Facts: Leak in pipes rotted tree roots; 20 years later tree fell over and injured P; P sued Sydney Water Corp. o Held: No DoC - May be expressed as a conclusion that in the absence of control over any risk posed by the

tree in the years after the installation of the water main . • Kirkland- Veenstra v Stuart [2009] HCA

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o Facts: Police found man sitting in car with pipe from exhaust; asked questions but decided to leave; suicide; P alleged duty arose from Mental Health Act and police manual �

o Held: No DoC à Gummow, Hayne, Haydon: § S10 for the Mental Health Act: Duty is to take reasonable steps to prevent foreseeable harm to P at his

own hand; Duty to take to medical practitioner - not an absolute duty - circumstances may warrant otherwise �

§ s10 conditions were not met: it was the P and not the police officers who had control of P’s mind = the source of the risk; therefore no statutory duty �

§ Note: there is also no general duty to rescue. �� • Civil Liability Act (WA) 2002

o 5X Policy decision cannot be used to support finding of fault in relation to public body, unless decision so unreasonable that no reasonable public body would have made it �

o 5W Lists factors that can be considered of whether a duty of care exists � § (a) Financial and resource availability; § (b) allocation of resources; § (c) functions of body with reference to the broad range of activities; § (d) compliance with general procedures and applicable standards

� o 5AA The fact that a public body exercises a function does not of itself indicate that the body or officer is

under a duty to exercise the function in particular circumstances or in a particular way �

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STANDARD OF CARE AND DUTY OF BREACH (A) DETERMINANTS OF BREACH 1.1 Common law Wyong Shire Council v Shirt (1980) 146 CLR 40

§ Facts: Mr Shirt water skiing on lake, water shallow; Sign in the middle of the lake - “deep water” �- deep water was meant to only refer to the section behind the sign; Mr Shirt sued the council �(argument that sign implied that entire lake was deep)

§ Held (per Mason): o In deciding whether there has been a breach of the duty of care: �

− Whether a reasonable man in the D’s position would have foreseen that his conduct �involved a risk of injury to the P or to a class of persons including P �

− If yes, it is then for the tribunal of fact to determine what a reasonable man would do by �way of response to the risk.” �

o “The perception of the reasonable man’s response calls for a consideration of: − the magnitude of the risk and − the degree of the probability of its occurrence, − along with the expense, difficulty and inconvenience of taking alleviating action and − any other conflicting responsibilities which the D may have.” − Adopted in the CLA

o Shirt has been held to still be good law even after the CLA: Fahy 2007 ALR � 1.2 Civil Liability Act (‘CLA’): ss 3A, 5A, 5B The CLA governs the issue of breach for causes of action arising on or after the relevant date of commencement (Parts 1A to 1F commenced on 1 December 2003). s 5B CLA: General Principles

(1) A person is not liable for harm caused by that person’s fault in failing to take precautions against a risk of harm unless -

a) the risk was foreseeable (i.e. a risk of which the person knew or ought to have known); � 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) — �

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. �

s 3A: Damages excluded from Act � (1) The provision of this Act specified in the third column of an item in the Table to this �subsection do not apply to

damages of a class specified in the second column � (2) Damages to which the Motor Vehicle Act 1943 applies; Sections 5A and 5B do not apply (as well as others) � à

i.e. can instead start with the Common law � (3) Damages to which the Workers’ Compensation and Injury Management Act 1981. Sections 5A and 5B do not

apply � (4) Damages relating to personal injury that resulted from smoking or other use of tobacco products. Section 5B and

5C do not apply � (5) Damages under the Civil Aviation Act 1961. Section 5B and 5C do not apply � (6) Damages relating to personal injury that resulted from asbestos �

Broadly reflecting the common law approach, s5B(1) CLA provides that there is no liability UNLESS: (a) the risk of harm was foreseeable (b) the risk of harm was not insignificant; and (c) in the circumstances, a reasonable person would have taken precautions against the risk.

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2. Approach 2.1 Question of fact • Whether a duty is owed is a question of law, breach is primarily a question of fact: Qualcast v Haynes [1959] AC

743 2.2 Objective test

§ It is an objective standard - what would a man of ordinary prudence observe Vaughan 1873 All ER; Glasgow Corporation 1943 AC �

2.3 Time of assessment

§ We look at the incident in light of what was known at the time the incident occurred � § Roe 1954 QB o Facts: hairline crack in test tubes; became contaminated o Held: We look at the time of the negligent act �

§ If looking at the incident knowing that now everyone stores test tubes in die, and at the time they did not store it in die, then it would have been considered negligent; But in 1947, this was standard practice, they did not breach their duty �

(B) ESTABLISHING BREACH STANDARD OF CARE: The reasonable person 1.1 Attributes of the reasonable person • Attributes: Adult, plain and sober, normal intelligence à objective standard: Glasgow 1943 AC 1.2 Varying the standard? (a) Youth and diminished capacity • Standard expected of a child will be less than that of an adult -> the closer the child gets to adulthood, the higher

the standard • McHale v Watson (1966) CLR o Facts: 2 yo boy threw a dart at a post, but glanced off an hit 9 yo girl in the eye causing significant damage � o Held: 12 yo boy would not be expected to foresee that dart would not stick to the post, but �would instead glance

off and hit someone �- i.e. the standard if still objective for a child - child is seen as a class of 12 yo people - with limited capacity for foresight �

• Zanner v Zanner [2010] o Facts: Mother sustained serious injuries in home when 11 yo allowed to park; son had experience. o Held: There was a DoC- “not an activity whose importance would be beyond the understanding of an 11 year

old” � (b) Special expertise or inexperience • Imbree v McNeilly [2008] HCA o Facts: 16 yo unlicensed driver; swerved to avoid debris injuring P (tetraplegic) � o Held: Standard is that of “reasonable driver” - not to be further qualified by experience level �

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BREACH OF DUTY 1. the risk of harm was foreseeable s5B(1)(a)

§ Mason J in Tame; Annetts: “undemanding standard” à foreseeability is a low threshold § Gummow J in Dederer:

− just because something is remote does NOT mean it is unforeseeable − risk should be assessed prospectively and NOT retrospectively

2. the risk of harm was not insignificant s5B(1)(b)

§ CHANGE FROM COMMON LAW: Mason J in Shirt: ‘A risk which is not far-fetched or fanciful is real and therefore foreseeable’

§ Ipp Report: “not insignificant” = a higher probability than is indicated by the phrase “not far-fetched or fanciful” but not so high as might be indicated by a phrase such as a “substantial risk” �

• Characterisation of “risk” o Gummow J in Dederer: “the assessment of breach depends on the correct identification of the relevant risk of

injury” § Facts: P jumped off bridge into water and became a paraplegic; council did not have any warning regarding

the water depth (only “no diving” signs) § Held:

− Risk = jumping off the bridge and receiving serious injury (no previous evidence à uncommon) − Risk NOT = jumping off the bridge (common)

3. in the circumstances, a reasonable person would have taken precautions against the risk s5B(1)(c)

− Requires a weighing up a number of factors à do not treat as “inflexible formula” otherwise you may produce a “unreasonable result” (Gleeson, Kirby in Mulligan)

− See: s5B(2) for factors (a) Probability of Harm: s5B(2)(a)

§ Dederer 2007 NSW o Facts: P jumped off bridge into water and became a paraplegic; council did not have any warning

regarding the water depth (only “no diving” signs) o Held: Probability = likelihood of harm, not the frequency

§ Bolton 1951 All ER �

o Facts: Ball being hit into backyard and injured P; not a frequent occurrence � o Held: Probability was not high enough to justify precautions being taken

§ Roman Catholic Church 2005 CLR � o Facts: Flying fox incident � o Held: “There was no evidence of any serious accident on the flying fox in the past, there was no

evidence of pupils having pulled each other from the flying fox in the past, and there was a well known and enforced school policy against this’

§ Bujdoso 2005 CLR �

o Facts: Convicted child sex offender; admitted to a release program; subject to taunts and �threats before this time; bashed by fellow inmates �

o Held: There was a high probability that he would be attacked - combination of threats, taunts and knowledge about child sex offenders; simple measures could have been implemented

§ Adeels Palace 2009 HCA �

o Facts: Serious injury on dance floor; gun was brought in � o Held: Probability of this incident was low - there were regular incidents outside, but there was a low

probability that gun and inside incident would occur; NO breach. �

(b) Likely Seriousness of Harm s5B(2)(b) § Prospective perspective

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§ Paris 1951 AC o Facts: Man had only one eye; while tightening bolt, flew off and damaged good eye � o Held: More serious the damage = greater burden of precautions - high seriousness here as he only

had one good eye �

§ Shire of Brockton 2003 AU o Facts: Failure to properly extinguish a burning tip � o Held: Very high serious of potential harm - fires are dangerous in their nature - given that �summer,

dry and windy conditions, high burden of precautions �

(c) Burden of Taking Precautions s5B(2)(c) § Goldman 1967 AC

o Facts: Lightning struck tree; fire from tree not properly extinguished; spread to neighboring �property � o Held: Depends on the ability of the person to take precautions - they had the ability here, �therefore,

liable �

§ Graham Barclay Oysters 2002 ALR o Facts: Contaminated oysters � o Held: High financial burden on client - would have had to stop production for an extended period and

remove current oysters - therefore no breach �

§ Roman Catholic Church 2005 CLR o Facts: Girl on flying fox; boys pulled her legs - cracked her head - sued for lack of supervision �at

school - teacher had gone to deal with classroom issue � o Held: �

Ø Teacher: Not negligent - Saw to one problem instead of another - no reason to expect incident was about to occur �

Ø School: Not negligent - Claimed should have been more people on supervision � Ø Court considered: limited resources which meant more important duties would have been �forgone;

also would have reduced “play” of kids in playground if increased supervision �

§ Romeo 1998 ALR � o Facts: Woman fell off cliff without realising, after she stepped over a log o Held: Not negligent �- Low probability of someone walking over the edge; Very serious injuries likely

to result; Burden of putting signs along the 50km coast line is high �à Financially; aesthetically and practically considerations to be had �

(d) Social Utility s5B(2)(d )

§ If the negligent act that the defendant performed has a greater utility (social good), then that will be taken into account � o However it does not mean that every time there is a social utility that there is no negligence �

§ Fahy 2007 ALR �

o Facts: Police officer witnessed stabbing; partner absent at time � o Held: Police departments are providing a social utility; not a breach for her to be alone

§ Australian Red Cross 1991 FCR

o Facts: Concerned blood, HIV; only way to test was surrogate testing � o Held: Because at the time, there was no efficient way of testing, and they were providing a �social

utility, no negligence �

§ Hertfordshire County Council 1954 All ER � o Facts: Fire engine not properly secured at scene, jack flung around and hit fireman o Held: Because they were providing a social utility, no breach �- The greater good takes priority over

the individual � (e) Other factors (common law)

− (a) Creation or Non-creation of Risks

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§ Goldman 1967 AC o Facts: o Held: He did not start fire; it was a lightning strike that started it - i.e. it is irrelevant

− (b) Industry Standards / Practices § Cekan 1990 NSW

o Facts: Sued prison authority for failing to prevent self-harm; suggested reasonable care required constant monitoring

o Held: Reasonable care involves CCTV in every cell - high degree of cost involved- looked at standard practice in other jurisdictions - no requirement

§ Woods 2002 ALR

o Facts: P hit by cricket ball while at venue �� o Held: Looked to standard practice of other jurisdictions, found that it was not standard practice to

issue helmets

− (c) Statutory Standards: § Lowns 1997 ATR

o Facts: Child had epileptic fit; fetched doctor; failed to attend � o Held: Medical practitioner’s act in NSW that describes professional misconduct as failing to attend

when required - therefore liable

− (d) Obvious Risks: § Obvious risk = duty to warn of risk à note: just because there is no duty to warn does NOT mean that

there will be no liability for harm (just that no requirement to warn) § Romeo 1998 ALR �-

o Held: Risk of getting drunk near a cliff bench was deemed to be obvious �

§ Woods 2002 ALR �- o Facts: P hit by cricket ball while at venue � o Held: So obvious a risk that it was not necessary to warn �

(f) Balancing the factors:

§ Start with s 5B and then look to the factors - Seriousness of harm is considered highly important

§ Romeo 1998 ALR - No liability o Held: Very high seriousness of harm from falling from cliff, BUT very high burden of fencing

coastline AND very remote possibility of harm occurring

§ Vairy 2005 CLR - Liable � o Facts: Diving off rocks into ocean. o Held: High seriousness, low probability (long period of time); low burden of putting up signs

§ Woods 2002 ALR- No liability

o Facts: P hit by cricket ball while at venue � o Held: Low burden; low probability; low seriousness; obvious risk

§ Dederer 2007 NSW - No liability

o Held: Very low probability - people had been doing it for ages; However, seriousness was high; Burden - had varying degrees, a sign did already exist also, cost was so high that it defeated the breach of duty; Social utility is minimal

§ Bujdoso 2005 CLR � - Liable

o Held: High probability; high seriousness - and was seriously injured; Burden: low

§ Waverley Council 2005 NSW – Liable

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o Facts: Child fell through skylight of council building. Council had allowed vegetation to grow along building – allowing children to climb up.

o Held: Probability: Knew that the building was old, run down and that kids were frequently playing in that area; Seriousness: High if a child was to fall through the skylight; Burden: Relatively minor- bars on skylight, restricted access to building, low cost of inspection; Therefore, council liable