TORTS 1 – NEGLIGENCE

To successfully sue a Defendant in the tort of negligence, a Plaintiff must establish 3 requirements: • The defendant owes Plaintiff a duty of care; and • The defendant breached the duty of care; and • The defendant’s breach caused them to suffer reasonably foreseeable harm (known as causation)

Requirement 1: Duty of Care

The onus is on the Plaintiff to establish the existence of the duty of care

Donoghue v Stevenson [1932] established the “Neighbourhood Principle” that identified a number of relationships which, by, law automatically owe a duty of care

Established Categories – Manufacturer A manufacturer of goods or products owes a duty of care to people who use their goods or products. See: Donoghue v Stevenson [1932]

Established Categories – Occupier An occupier of a premises owes a duty of care to all persons entering the premises to ensure that the premises are safe. See: Australian Safeway Stores Pty Ltd v Zaluzna (1987)

Established Categories – Occupier’s Liability An occupier also owes a duty of care to people who are on their premises without their permission See: Hackshaw v Shaw (1984)

Occupier’s Liability – Public Authorities Public authorities (government and council bodies and organizations) can often be occupiers. Whether or not public authorities automatically owe a duty of care to people who are situated on areas under their control depends on a range of factors - including whether or not there exists a duty of care to warn of hidden risks See: Nagle v Rottnest Island Authority (1993), Swain v Waverley (2005), Romeo v Conservation Commission (1998), Vairy v Wyong Shire Council (2005)

No Established Categories 2 tests must be satisfied: • Was it reasonably foreseeable that the Defendant’s conduct could cause harm to someone in the Plaintiff’s position? See: Donoghue v Stevenson – “neighbour principle” • Are the salient features of the case consistent with the existence of a duty of care?

- Relationship between parties - Control - Relative knowledge - Experience - Vulnerability and reliance - Personal responsibility

Requirement 2: Breach of Duty

See: s9 Civil Liability Act 2003 (Qld)

Section 9(1): A defendant breaches their duty of care if: • The risk was foreseeable (that is, it is a risk that they knew about or ought reasonably to have known about); • The risk was not9 insignificant; and • In the circumstances, a reasonable person in their position would have taken the precautions

Section 9(2): To determine what a reasonable person would do, the Court will take into account: • The probability of harm; See: Bolton v Stone (1951) • The likely seriousness of the harm; See: Paris v Stepney Borough Council • The burden of taking precautions; and See: Bolton v Stone (1951) • The social utility of the defendant’s activity See: Watt v Hertfordshire (1954)

Requirement 3: Causation

See: Section 11 Civil Liability Act

The defendant is only responsible for the harm if: • The breach of duty was a necessary condition of the occurrence of the harm – the careless act caused, either directly or indirectly, the harm (“factual causation test”) – the “but for” test; and See: Yates v Jones [1990], Chappel v Hart (1998) – “Material Contribution Test”, Cook v ACT Racing Club Inc and the AJC Inc [2001] • It is appropriate for the scope of the liability (“scope of liability test”) of the person in breach to extend to the harm so caused See: Overseas Tankships v Mort [1961]

Defences

2 important defences to consider: • Voluntary Assumption of Risk - Plaintiff had full knowledge and appreciation of the risk and freely and willingly agreed to the precise risk that eventuated – of their own free choice without restraint - If it can be shown that plaintiff voluntarily assumed the risk, defendant may be relieved of all liability See: S13-14 CLA: - Defendant can argue voluntary assumption of risk where the plaintiff was injured doing something obviously risky (obvious to a reasonable person). - The plaintiff is taken to have been aware of the risk, unless the plaintiff proves on the balance of probabilities that they were not aware of the risk See: Agar v Hyde (2000) See: S15 CLA: Defendant not under duty to warm of obvious See: S17-19 CLA: Def not liable for harm from obvious risk of dangerous recreational activity. • Contributory Negligence - If it can be established that plaintiff contributed in some way to their own loss or injury, liability will be apportioned between the defendant and plaintiff. See: Ingram v Britten, Manley v Alexander

Vicarious Liability: an employer may be liable for the acts or omission of their employees. See: Century v Northern Ireland (1942), Deatons v Flew (1949)

TORTS 1 – NEGLIGENT EXAMPLES

Donoghue v Stevenson (1931) AC 564 • Mrs May Donoghue was at a café drinking (allegedly) a ginger beer. • The drink was bought by her friend, from the retailer. • When the remainder of the drink was poured out into Donoghue’s glass, the remains of a decomposed snail floated out of the bottle. • It was not possible to detect the remains of the snail, before consuming most of the contents of the bottle. • Donoghue suffered nervous shock and severe gastro-enteritis as a result of seeing the decomposed snail and consuming the contaminated drink. • Manufacturer owes a duty of care; “neighbourhood principle” must take reasonable care to avoid foreseeable acts/omissions which are likely to injure your neighbour (in this case, manufacturer should have taken the necessary precautions to ensure that each drink was safe to drink – with no unknown substances inside)

Australian Safeway Stores Pty Ltd v Zaluzna (1987) • Zaluzna was shopping at ASS Pty Ltd on a rainy day – slipped on the west floor near the entrance • ASS Pty Ltd was held liable to compensate for injuries – they had a choice to do something about the floor (e.g. putting a wet floor sign up), but they did not do anything to prevent it, therefore it was their fault

Hackshaw v Shaw (1984) • Farmer suspected someone was stealing to petrol from his bowser – he caught the man stealing petrol and shot at his tyres, accidently hurting the woman riding inside the vehicle • She sued for compensation for her injuries: court decided the farmer owed a duty of care and has breached it • Thus, an occupier owes a duty of care event to people who are on their premises without permission – in this case, they should have rung the police. (However, if plaintiff was proven to be committing an indictable offence, the defendant will not be liable)

Nagle v Rottnest Island Authority (1993) • Submerged rock at a designated swimming area, sign said “Swimming area” • Hidden risk – not foreseeable/obvious and encouraged people to swim there • RIA should have a warning sign (they had control & power over the premises), therefore liable to Nagle.

Swain v Waverley (2005) • Submerged sandbar at a patrolled surf beach in between the flags • Hidden risk – not foreseeable/obvious and surfer dived into waves • Court decided there was a duty of care to warn e.g. sign or move flags to a place with no sandbar

Romeo v Conservation Commission (1998) • Romeo (15 years old) had been drinking at an unfenced public space on a cliff top; • She fell and became paraplegic: sued CC for compensation for her injuries, saying there should have been a sign • Court decided the danger was obvious to any reasonable person and CC was not liable for injuries and should be able to assume entrants will take reasonable care for their own safety

Vairy v Wyong Shire Council (2005) • Plaintiff dived into the sea from a natural rocky platform (not a man-made structure) at a surfing beach • The beach was unpatrolled, had no signs – plaintiff cracked his neck • Judge said signs should be created, but looking forwards, there were plenty of points where the risk occurs and a reasonable council simply would not erect a sign in every single point where danger occurs – too much of a burden (any reasonable person would know not to dive)

Bolton v Stone (1951) • Cricket ball cleared Stadium and had hit someone. • Injured party claimed damages. • Cricket club not liable as the likelihood of the harm was very low, and erecting a fence higher than the defendant had already done would be impractical • It is not the law that precautions must be taken against very peril that can be foreseen by the timorous

Paris v Stepney Borough Council (1951) • Worker (Paris) was welding steel. Note that worker only has 1 eye. • Welding is a dangerous activity and the employer says “Use a mask”. • Worker refuses and gets blind • Court decided a reasonable person would of made Paris war the goggle – breach of duty, BC is accountable

Watt v Hertfordshire (1954) • Fireman called to accident, the car was not available to secure equipment and the fireman was hurt by loose equipment: tries to sue for negligence • Court decided Hertfordshire was under no obligation to make sure car equipment was there all times and there was no greater risk than usual for a firefighter. (Hertfordshire social utility was enough not to be liable)

Yates v Jones [1990] • Yates was injured in a car accident caused by Jones. • Visited in hospital by friend who suggested she take heroin to ease the pain. • Yates became addicted to heroin and sued Jones for the cost of it • Court held addiction not caused by car accident, rather it was caused by the actions of Yates’s friend.

Chappel v Hart (1998) • Woman had an operation – surgeon failed to warn her the possibility for nerve damages • Nerve was damaged – if she had known, she wouldn’t had the operation • Court found there was causal connection between a surgeon failure to warn and the injury that was sustained, therefore surgeon was liable

Cook v ACT Racing Club Inc and the AJC Inc [2001] • Jockey uses sauna at racetrack and the sauna was overheated which severely de- hydrated jockey. • Jockey subsequently suffered heart attack - dehydration was only 1 cause of the heart attack. • Court held that the overheated sauna significantly increased the risk of injury to the Plaintiff.

Overseas Tankships v Morts [1961] • Plaintiff were owners of the wharf in Sydney Harbour; Defendant had a chartered ship moored in the harbour. • Defendant negligently discharged furnace oil into harbour and drifted in to shore with the tide (around 200m). • Plaintiff was operating a dockyard at a wharf nearby stopped work to decide whether it was safe • After 50 hours work, molten metal fell through gaps, wharf and ship badly were damaged • Court decided that the fire damage to the wharf (due to the discharge of oil into the harbour) could not have been foreseen by a reasonable person.

Agar v Hyde (2000) • Two rugby union players break their necks in a scrum • Court decided rugby players were aware of the risk of contact sports – voluntary assumption so Rugby union board was not liable

Ingram v Britten • Ingram was driving tractor on farm at excessive speed. However, Britten did not secure metal frame to tractor • Court decided Ingram was negligence for dangerous driving ad Britten was negligence for not fitting the tractor • Court apportioned liability 40% Britten and 60% Ingram

Manley v Alexander • Plaintiff drank 12 stubbies and slept in middle of the road • Defendant drove over him (negligently) and plaintiff tried to sue for negligence for compensation to the injuries • Court apportioned liability 20% to defendant and 80% to Plaintiff (i.e. plaintiff claims $10000 from defendant, he’ll only be getting $2000 back)

Century v Northern Ireland (1942) • Driver lit a cigarette while delivering petrol to an underground tank – caused fire • Employer claimed he was not liable because the driver was not permitted to smoke • Court decided that the employer was liable because the employee had been carrying out an authorised task

Deatons v Flew (1949) • Bar attendant got into an argument with a customer (Flew) and threw a glass of beer at his face • Flew commence proceedings against the owner of the hotel claiming they were vicariously liable for the bar attendant’s section Court decided the bar attendant was not acting on the scope of their employment at the time of the incident, so the owner of the hotel was not liable