Category Archives: Duty of Care

Brodie v Singleton Shire Council [2001] HCA 29 | 31 May 2001

ON THIS DAY in 2001, the High Court of Australia delivered Brodie v Singleton Shire Council ; Ghantous v Hawkesbury City Council[2001] HCA 29; (2001) 206 CLR 512.

http://www.austlii.edu.au/au/cases/cth/HCA/2001/29.html

“Negligence – Highways – Injuries to user of highway – Liability of highway authority – Whether immunity under the “highway rule” – Distinction between misfeasance and non-feasance.

Negligence – Duty of care – Statutory authority – Highway authority – Content of duty of care – Relevant considerations.

Negligence and nuisance – Whether nuisance in relation to public authorities subsumed by the law of negligence.

Highways – Negligence and nuisance – Immunity under “highway rule” – Misfeasance and non-feasance – Whether liability subsumed in general principles of negligence.

Precedent – Stare decisis – High Court – Departure from previous decisions – Relevant considerations.

Words and phrases – “highway rule” – “immunity”.

Local Government Act 1919 (NSW), ss 220-277B.”

The ruling abolished the common law immunity of highway authorities from liability for injury, loss or damage caused by their own non-feasance in Australia.

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Negligence – Duty of care – Safe system of work – Work injury

ON THIS DAY in 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/20.html

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

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Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 | 13 May 1986

ON THIS DAY in 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/20.html

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

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Sydney, Australia

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Negligence – Reasonably foreseeable – Personal injury

Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078; [1951] UKHL 2 (10 May 1951).

http://www.bailii.org/uk/cases/UKHL/1951/2.html

Liability does not extend to damage caused by a certain act or omission unless the possibility of causing the damage was reasonably foreseeable at the time.

The damage is not reasonably foreseeable if the likelihood of it happening involves a risk so small that a reasonable person would feel justified in disregarding it.


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Negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Likelihood of harm occurring – Personal injury

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 (1 May 1980).

“Negligence – Duty of care – Breach of duty – Foreseeability of risk of injury – Likelihood of harm occurring – Erection of sign “deep water” in vicinity of shallow water – Whether foreseeable that inexperienced water-skier would fall and suffer injury.”

http://www.austlii.edu.au/au/cases/cth/HCA/1980/12.html

Mason J at p48 expressed the “risk calculus”, that when deciding on a breach of duty of care, the court must not only determine a foreseeable risk but it must also determine a reasonable man’s response by “consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.

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March v Stramare (E & M H) Pty Ltd [1991] HCA 12

ON THIS DAY in 1991, the High Court of Australia delivered March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506; (1991) 9 BCL 215 (24 April 1991).

Negligence – Causation – Duty of care – Injury reasonably foreseeable – Successive negligent acts by different persons – Whether first negligent actor exonerated by intervening negligent act – Apportionment of liability – Wrongs Act 1936 (S.A.), s. 27a(3).

The “but for” test was considered to be not a definitive test of causation in negligence.  Causation is a question of fact to be determined with reference to common sense and experience.

http://www.austlii.edu.au/au/cases/cth/HCA/1991/12.html

The “but for” test has since been revived by the operation of the Civil Liability Acts: see for instance Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

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Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 | 23 April 2001

ON THIS DAY in 2001, Justice Peter McClellan of the Supreme Court of NSW delivered Sharp v Stephen Guinery t/as Port Kembla Hotel and Port Kembla Rsl Club [2001] NSWSC 336 (23 April 2001).

“Judgment on application for verdict by direction

negligence action

whether plaintiff precluded from putting a case in negligence to jury

whether evidence of breach of duty

whether evidence which could establish that the taking of any step would have eliminated risk of plaintiff’s injury

whether evidence before the jury that the risk of injury from tobacco smoke was reasonably foreseeable

whether rule in Browne v Dunn has application

s 23(4), s 42(1) Factories, Shops & Industries Act 1962”

Sharp had sought damages from her employer alleging that her exposure to tobacco smoke as a barmaid resulted in her suffering from laryngeal cancer.  The case was heard before a jury.

The judgment led to jury directions which resulted in a finding that the cancer was caused, or materially contributed to, by the employer’s negligence.

On 2 May 2001, the jury awarded Sharp damages of $466,000 plus costs.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/336.html

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Stuart v Kirkland-Veenstra [2009] HCA 15 | 22 April 2009

Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/15.html

“TORTS – Negligence – Duty of care – Where Mental Health Act 1986 (Vic), s 10 empowered police to apprehend person who “appears to be mentally ill” if reasonable grounds for believing that person had recently attempted suicide or likely to do so – Where police came upon man who appeared to have been contemplating suicide but showed no sign of mental illness – Interaction of common law and relationship established by s 10 – Whether duty of care to prevent foreseeable harm to man at own hand – Relevance of conditions engaging exercise of statutory power – Relevance of fact that duty alleged is duty to protect person from self-harm – Relevance of general rule against duty to rescue – Relevance of vulnerability of particular class of persons – Relevance of control over source of risk to persons.

TORTS – Negligence – Duty of care – Where duty alleged to arise in context of power conferred by Mental Health Act 1986, s 10 – Whether preconditions to existence of power established on facts – Whether common law duty could exist in absence of relevant power.

TORTS – Breach of statutory duty – Relevance as alternative to action alleging breach of common law duty of care – Principles relevant to determining legislative intention that cause of action be available – Relevance of legislative provision for special measures to protect identifiable class of persons or property – Whether existence of discretion to exercise power inconsistent with existence of statutory duty.

STATUTES – Interpretation – Whether person who has attempted suicide to be equated with person “mentally ill” – Relationship between attempted suicide and mental illness – Understanding at common law of relationship between suicide and mental illness.

WORDS AND PRRASES – “mentally ill”.

Crimes Act 1958 (Vic), ss 457, 463B.
Mental Health Act 1986 (Vic), ss 3, 8, 10.
Wrongs Act 1958 (Vic), Pt III.”

The court decided that two police officers did not owe a duty of care to a man who took his life; nor to his surviving spouse. Earlier in the day of the deceased’s death the officers had observed an apparent suicide attempt by the deceased but were satisfied that he sounded rational and was responsive to their questions.

The law does not create an obligation to rescue another from harm and in this case there were no special features outside of the general rule.

As the police officers had not formed the view that the deceased was mentally ill, they had no power to apprehend him and have him assessed under the Mental Health Act.

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Sydney, Australia

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Tabet v Gett [2010] HCA 12 | 21 April 2010

ON 21 APRIL 2010, the High Court of Australia delivered Tabet v Gett [2010] HCA 12 (21 April 2010).

“NEGLIGENCE – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent’s delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.

NEGLIGENCE – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.

WORDS AND PHRASES – “balance of probabilities”, “damage”, “gist of the action”, “loss of a chance of a better outcome”, “standard of proof”.”

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

The law of negligence does not allow for damages to be awarded when the breach of duty of care causes less than a 50% chance of a better outcome.

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

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Sydney, Australia

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Hawkins v Clayton [1988] HCA 15 | 8 April 1988

ON 8 APRIL 1988, the High Court of Australia delivered Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 (8 April 1988).

A firm of solicitors was held to be negligent by failing to take reasonable steps to locate an executor (a non-client) following the death of a testatrix (a client whose will they prepared and retained for safe keeping) for some six years after the testatrix’s death.  The solicitors were held to be liable to pay damages for the loss suffered by the executor (who was also a residuary beneficiary) in not being able to manage the estate during the period of delay.

The majority (Brennan, Deane and Gaudron JJ) held that the solicitors owed a tortious duty of care to the executor and that the action was not statute-barred.

http://www.austlii.edu.au/au/cases/cth/HCA/1988/15.html

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