Category Archives: Duty of Care

Causation, Duty of Care, LAW FIRM, Negligence, Occupiers Liability, Personal Injury, Torts

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 | 10 November 2009

ON 10 NOVEMBER 2009, the High Court of Australia delivered Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/48.html

Early on New Years day in 2003, Mr Moubarak and Mr Bou Jajem were injured on the premises of Adeels Palace Restaurant in the Sydney suburb of Punchbowl. The men were shot by another patron who had earlier been involved in a dispute on the dance floor, left the premises and returned with a gun.

The men sued for damages, alleging that their injuries were the result of Adeels’ negligence in failing to provide any or any sufficient security on the night of the incident. The men succeeded before the District Court of NSW and NSW Court of Appeal. However, the High Court allowed Adeels’ appeal and set aside the earlier decisions.

The High Court held that the evidence did not establish that action could have been taken to prevent the violent conduct occurring. The court held that the evidence only went as far as showing that the provision of more security might have prevented the damage but did establish, on the balance of probabilities, that it would have prevented the damage.

The court held that it was unnecessary to determine whether or not there was a breach of duty of care because the men had not established that Adeels’s failure to provide any or any sufficient security was a necessary cause of their damage as required under s5D of the Civil Liability Act 2002 (NSW).

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Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) [1981] HCA 59 | 28 October 1981

ON 28 OCTOBER 1981, the High Court of Australia delivered Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) [1981] HCA 59; (1981) 150 CLR 225 (28 October 1981).

http://www.austlii.edu.au/au/cases/cth/HCA/1981/59.html

Government departments and their agencies are under a duty to take reasonable care when passing on information to members of the public.

The measure of damages for negligent mis-statement is “the amount necessary to restore the plaintiff to the position he was in before the statement, subject to the loss being foreseeable.”

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Kondis v State Transport Authority (formerly Victorian Railways Board) [1984] HCA 61 | 16 October 1984

ON 16 OCTOBER 1984, the High Court of Australia delivered Kondis v State Transport Authority (formerly Victorian Railways Board) [1984] HCA 61; (1984) 154 CLR 672 (16 October 1984).

The High Court ruled that a special duty of care by an employer to an employee to provide a safe system of work is non-delegable.

The Victorian State Transit Authority engaged an independent contractor to dismantle a crane in a railway yard. Kondis injured his back when a metal pin fell from the crane. Kondis sued the State Transit Authority. The High Court held that the State Transit Authority, as employer, was liable for the harm caused by the independent contractor because their failure to adopt a safe system of work was a breach of the employer’s non-delegable duty of care.

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Tame v New South Wales [2002] HCA 35 | 5 September 2002

ON 5 SEPTEMBER 2002, the High Court of Australia delivered Tame v New South Wales [2002] HCA 35; 211 CLR 317; 191 ALR 449; 76 ALJR 1348 (5 September 2002).

In a claim for damages for psychiatric injury caused by negligence, direct perception of the event or its aftermath is not a necessary aspect in all cases.

The question is whether it was reasonable to require the defendant to contemplate the risk of psychiatric injury to the plaintiff, and to take reasonable care to guard against the risk.

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Causation, Duty of Care, Evidence, LAW FIRM, Medical negligence, Negligence, Personal Injury

Chappel v Hart [1998] HCA 55 | 2 September 1998

ON 2 SEPTEMBER 1998, the High Court of Australia delivered Chappel v Hart [1998] HCA 55; 195 CLR 232; 156 ALR 517; 72 ALJR 1344 (2 September 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/55.html

A procedure to repair a perforation of the oesophagus carried a small inherent risk of infection which could damage the plaintiff’s laryngeal nerve and voice. The patient, who suffered an infection, was not warned of these risks. It was found that had the patient been informed of the risks he would have deferred the procedure and had it performed by a more experienced surgeon.

Using the “common sense” test of causation of March v Stramare (E & M H) Pty Ltd, the High Court held that the patient’s harm was caused by the doctor’s failure to warn of risk rather than a failure with the actual care provided.

The court applied a subjective approach for determining what the patient done had the doctor not been negligent in failing to warn him of the risk.

Per Gaudron J at [32]:

“Furthermore, a defendant is not causally liable, and therefore legally responsible, for wrongful acts or omissions if those acts or omissions would not have caused the plaintiff to alter his or her course of action. Australian law has adopted a subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. The enquiry as to what the plaintiff would have done if warned is necessarily hypothetical. But if the evidence suggests that the acts of omissions of the defendant would have made no difference to the plaintiff’s course of action, the defendant has not caused the harm which the plaintiff has suffered.”

Per McHugh J at [23]:

“The question of causation is not resolved by philosophical or scientific theories of causation”

The Civil Liability Act 2002 has modified the common law position with regards to the common sense test and subjective approach to causation.

 

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Imbree v McNeilly [2008] HCA 40 | 28 August 2008

ON 28 AUGUST 2008, the High Court of Australia delivered Imbree v McNeilly [2008] HCA 40 (28 August 2008).

The High Court held that an unlicensed 16 year old driver owed the same duty of care as any other driver to take reasonable care to avoid injury to others, overturning its decision in Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 (2 December 1986) in which it had held that the standard of care was that which would be expected of an unqualified and inexperience driver.

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Jaensch v Coffey [1984] HCA 52| 20 August 1984

ON 20 AUGUST 1984, the High Court of Australia delivered Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549 (20 August 1984).

http://www.austlii.edu.au/au/cases/cth/HCA/1984/52.html

A plaintiff suffered nervous shock when immediately after an accident she saw her injured husband in hospital and was told of the seriousness of his injuries.

The High Court extended the class of persons to whom a duty of care is owed to those who, although not present at the scene of an accident, are at risk of suffering psychiatric injury by personally perceiving the direct and immediate aftermath of the accident in which a person with whom they are in a “close or intimate relationship” with is negligently injured or killed.

The duty of care was characterised as arising from the injury being reasonably foreseeable and sufficient proximity between the plaintiff and the defendant.

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Northern Sandblasting Pty Ltd v Harris [1997] HCA 39 | 14 August 1997

ON 14 AUGUST 1997, the High Court of Australia delivered Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997).

http://www.austlii.edu.au/au/cases/cth/HCA/1997/39.html

A landlord has a duty to its tenants to use reasonable care and skill to provide safe premises. The obligation is limited to repair of defects which the landlord was or should have been aware. The landlord must reasonably respond to any information it receives as to the existence of any defect.

The court held that the rule in the English decision of Cavalier v Pope Cavalier v Pope [1906] AC 428 (a landlord is immune from liability in tort for defective premises causing injury) should no longer be followed in Australian law as it is inconsistent with the principles concerning of duty of care developed since Donoghue v Stevenson.

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Perre v Apand Pty Ltd [1999] HCA 36 | 12 August 1999

ON 12 AUGUST 1999, the High Court of Australia delivered Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180; 64 ALR 606; 73 ALJR 1190 (12 August 1999).

Negligence – Duty of care – Economic loss – Factors relevant to determination of duty.

Words and phrases – “Duty of care”, “Economic loss”.

Plant Diseases Regulations (WA) Sched 1, Pt B, Item 14(1)(b).

http://www.austlii.edu.au/au/cases/cth/HCA/1999/36.html

Apand was a potato crisp manufacturer who caused a South Australian potato farmer’s potatoes to be infected by supplying him with infected seeds. Neighbouring farms were prohibited from exporting their potatoes to the lucrative Western Australian market for a period of 5 years by reason of being located within 20km of the infected farm.

Perre and his neighbours sued Apand for the pure economic loss resulting from the loss of access to the Western Australian market.

Five of the judges (Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ) held that Apand owed a duty of care to all the plaintiffs; the others (McHugh and Hayne JJ) held that only some of the plaintiffs were owed a duty of care.

The court (apart from Kirby J) rejected the idea that proximity is the determinant or “unifying criterion” of the duty of care.

The decision contains seven judgments with four different tests for determining a duty of care for pure economic loss.

Gleeson CJ, Gummow J, Callinan J, Hayne J, in separate judgments, took the view that the duty of care is to be identified by looking at the salient features of the case. They offer a flexible approach that avoids a strict formulation.

Gaudron J found that a duty of care arose in the context of defendant being in a position of control and being able to affect the plaintiff’s legal rights and the plaintiff’s dependence on the defendant.

McHugh J favoured the incremental approach, which identifies the following features as being relevant to a duty of care:

  • reasonable foreseeability.
  • indeterminacy of liability.
  • unreasonable burden on individual autonomy in the market.
  • vulnerability of the plaintiff.
  • the defendant’s knowledge of the risk to a particular plaintiff.

Kirby J favoured foreseeability, proximity and policy, adopting the three stage English test in Caparo Industries Plc v Dickman [1990] 2 AC 605.

The court affirmed it’s earlier decision in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” that there is no absolute exclusionary rule for the recovery of damages for pure economic loss and it is therefore possible for a plaintiff to recover for pure economic loss when “the defendant has knowledge…that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence.”

The court rejected the notion that pure economic loss may only be recovered in circumstances of negligent misstatement as in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd.

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Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42 | 10 August 1956

ON 10 AUGUST 1956, the High Court of Australia delivered Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; (1956) 96 CLR 18 (10 August 1956).

http://www.austlii.edu.au/au/cases/cth/HCA/1956/42.html

The duty of care of a reasonably prudent employer is “a duty to take reasonble care to avoid exposing the employees to unnecessary risks of injury” (per Dixon CJ and Kitto J at 25) and “a duty to ensure that all reasonable steps are taken to provide a safe system of working” (per Fullagar J at 34).

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