Category Archives: Duty of Care

Duty of Care, LAW FIRM, Motor Accidents, Negligence

Chapman v Hearse [1961] HCA 46 | 8 August 1961

ON 8 AUGUST 1961, the High Court of Australia delivered Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 (8 August 1961).

http://www.austlii.edu.au/au/cases/cth/HCA/1961/46.html

Chapman negligently drove his vehicle causing it to collide with another vehicle and overturn. Chapman was ejected from his vehicle and came to rest unconscious on the roadway. Dr Cherry came to Chapman’s assistance but was struck and fatally injured by a vehicle driven by Hearse who had negligently failed to see him.

The executor or the estate of Dr Cherry sued Hearse in the Supreme Court of South Australia for damages arising from the doctor’s death.

The Chief Justice of the South Australian Supreme Court found Hearse to be liable, ordering him to pay damages but also ordered that Chapman should contribute one quarter of that sum.

Chapman appealed to the South Australian Court of Appeal, who dismissed the appeal.

Chapman appealed against the decision in the High Court, arguing that (1) Chapman owed Dr Cherry no duty of care as it was not reasonably foreseeable (2) Dr Cherry’s death was caused solely by the negligence of Hearse and (3) the damage was to remote in any case.

The High Court dismissed the appeal. On the questions of duty and remoteness, the High Court held that Chapman did owe Dr Cherry a duty of care as it was “sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow a collision between two vehicles on a dark wet night upon a busy highway”. In essence, the court held that one is liable for all damage which is of the same general nature as that which could be reasonably foreseen.

On the question of causation, the court held that a wrongful intervening act does not of itself break the chain of causation as long as the intervening act was reasonably foreseeable.

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Duty of Care, LAW FIRM, Motor Accidents, Negligence

Bourhill v Young [1942] UKHL 5 | 5 August 1942

ON 5 AUGUST 1942, the House of Lords delivered Bourhill v Young [1942] UKHL 5 (5 August 1942).

http://www.bailii.org/uk/cases/UKHL/1942/5.html

A car and motorcycle collided near a tram causing fatal injuries to the motorcyclist. The motorcyclist was travelling at excessive speed and was at fault. A passenger on the tram heard the sound of the collision but saw nothing. She was startled by the noise of the collision, suffering nervous shock, though she was not in immediate physical injury herself. She observed blood on the roadway after the motorcyclists body had been removed. She later suffered a miscarriage. She claimed damages including losses to her business arising from the nervous shock.

The House of Lords held that the motorcyclist was not guilty of negligence as he did not owe a duty of care to the tram passenger as he could not have reasonably foreseen the likelihood that anyone placed as her (in a position of apparent safety) could have been affected in such a manner.

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Sydney, Australia

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Duty of Care, Torts

Junior Books Ltd v Veitchi Co Ltd [1982] UKHL 4 | 15 July 1982

ON 15 JULY 1982, the House of Lords delivered Junior Books Ltd v Veitchi Co Ltd [1982] UKHL 4 (15 July 1982).

http://www.bailii.org/uk/cases/UKHL/1982/4.html

Junior Books contracted with a business to lay a composite flooring in their factory. Veitchi was sub-contracted to do the work. The work was defective so Junior Books sued Veitchi, not the main contractor, for damages including the cost of replacing the floor and consequential business interruption. The claim was based in tort as there was no contractual relationship between Junior Books and Veitchi.

The House of Lords held that there was sufficient proximity between Junior Books and Veitchi to establish a duty of care and no reason to restrict that duty.

The House of Lords accepted that pure economic loss may be foreseeable when there is a sufficient degree of proximity between the parties.

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Sydney, Australia

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Duty of Care, Negligence

Council of the Shire of Sutherland v Heyman [1985] HCA 41 | 4 July 1985

ON 4 JULY 1985, the High Court of Australia delivered Council of the Shire of Sutherland v Heyman [1985] HCA 41; (1985) 157 CLR 424 (4 July 1985).

http://www.austlii.edu.au/au/cases/cth/HCA/1985/41.html

The council was sued by a resident homeowner for the expenses associated with remedying damage caused to their house due to it being constructed on inadequate footings. The owner alleged that the council was negligent in that it failed in it’s duty of care to ensure that the dwelling was properly constructed in accordance with the plans they approved because it failed to inspect the foundations before they were covered up.

The court did not find the council to be negligent in this case. Nevertheless, the decision established the principle that a public authority is governed by the ordinary principles of the law of negligence, even if it is a repository of a statutory discretion.

The court held that in certain circumstances a government body could be negligent in failing to prevent harm where a reasonable reliance arises from the community’s dependence on the function being exercised with due care.

Per Mason J at 464:

“…there will be cases in which the plaintiff’s reasonable reliance will arise out of a general dependence on an authority’s performance of its function with due care, without the need for contributing conduct on the part of a defendant or action to his detriment on the part of a plaintiff. …The control of air traffic, the safety inspection of aircraft and the fighting of a fire…by a fire authority…may well be examples of this type of function. …Whether the inspection of motor vehicles for registration purposes could generate such a general reliance is a more complex question…”

Per Mason J at 469:

“The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.”

The “doctrine of general reliance” has since been rejected by the High Court: see Pyrenees Shire Council v Day; Eskimo Amber Pty Ltd v Pyrenees Shire Council (1998) 192 CLR 330.

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Sydney, Australia

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Civil procedure, Duty of Care, Legislation, Medical negligence, Negligence, Nuisance, Occupiers Liability, Personal Injury, Product liability, Professional negligence, Torts

Civil Liability Act 2002 (NSW) | 18 June 2002

ON 18 JUNE 2002, the NSW Civil Liability Act 2002 was enacted.

http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/

The substantive provisions commenced retrospectively on 20 March 2002. There have been successive amendments, notably those which commenced in December 2002 and 2004 and June 2006.

The Act modifies the Australian common law with respect to civil liability claims in New South Wales, except those set out in s3B.

The Act limits the circumstances in which people may recover damages for civil wrongs and the amount of damages and costs they recover.

The significant features of the Act include:

  • Statement of principles for determining negligence.
  • Modification of causation test.
  • No duty to warn of obvious risk.
  • No liability for materialisation of inherent risk.
  • No liability for harm suffered from obvious risks of dangerous recreational activities.
  • No duty of care for risk warning of dangerous recreational activity.
  • Standard of care for professionals.
  • Contributory negligence can defeat a claim.
  • Fixing damages for economic and non-economic loss, including thresholds, discounts and maximum limits.
  • Limiting interest.
  • Restrictions for persons in custody.
  • Restrictions for mental harm.
  • Allocation of proportionate liability for concurrent wrongdoers.
  • Limiting liability of public authorities.
  • Restricting recovery for intoxicated persons.
  • Exclusion of liability for persons acting in self defence, good Samaritans, food donors or volunteers.
  • Apologies not to affect liability.
  • Limiting damages for birth of a child.
  • Exclusion of liability for trespass or nuisance by ordinary use of aircraft.
  • Costs restrictions.

The Act does not apply to claims (or parts of claims) regarding:

  • Intentional acts with the intent to cause injury or death or sexual assault or other sexual misconduct.
  • Dust diseases.
  • Tobacco.
  • Motor Accidents and public transport accidents.
  • Workers, Victims and Sporting Injuries compensation.

 

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Sydney, Australia

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Duty of Care, LAW FIRM, Negligence, United Kingdom

Bolton v Stone [1951] UKHL 2 | 10 May 1951

ON 10 MAY 1951, the House of Lords delivered 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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Duty of Care, LAW FIRM, Negligence, Occupiers Liability, Personal Injury, Torts

Strong v Woolworths Ltd [2012] HCA 5

ON 7 MARCH 2012, the High Court of Australia delivered Strong v Woolworths Ltd [2012] HCA 5 (7 March 2012).

http://www.austlii.edu.au/au/cases/cth/HCA/2012/5.html

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Sydney, Australia

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Duty of Care, Insurance Law, LAW FIRM, Negligence, Personal Injury, Uncategorized

Miller v Miller [2011] HCA 9

ON 7 APRIL 2011, the High Court of Australia delivered Miller v Miller [2011] HCA 9 (7 April 2011).

A joint illegal enterprise (eg joyride) negates a duty of care (driver to passenger) thereby creating a defence of illegality on the part of the driver/insurer: see Gala v Preston [1991] HCA 18. However, in Miller v Miller the High Court held that the plaintiff (injured passenger) was owed a duty of care because she withdrew from the enterprise by asking to be let out of the car and there were no reasonable steps available to her to prevent the continuation of the offence.

http://www.austlii.edu.au/au/cases/cth/HCA/2011/9.html

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Sydney, Australia

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Damages, Duty of Care, Insurance Law, LAW FIRM, Medical negligence, Negligence, Personal Injury, Professional negligence

Tabet v Gett [2010] HCA 12

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

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48

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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