Category Archives: Duty of Care

Damages, Duty of Care, LAW FIRM, Negligence

Perre v Apand Pty Ltd [1999] HCA 36

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).

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.

Pere and his neighbours sued Apand for the 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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Causation, Duty of Care, Evidence, LAW FIRM, Medical negligence, Negligence, Personal Injury

Chappel v Hart [1998] HCA 55

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 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 to do with the actual care provided.

The court also 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”

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Romeo v Conservation Commission of the Northern Territory [1998] HCA 5

ON 2 FEBRUARY 1998, the High Court of Australia delivered Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; 192 CLR 431; 151 ALR 263; 72 ALJR 208 (2 February 1998) .

http://www.austlii.edu.au/au/cases/cth/HCA/1998/5.html

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Pyrenees Shire Council v Day [1998] HCA 3

ON 23 January 1998, the High Court of Australia delivered Pyrenees Shire Council v Day [1998] HCA 3; 192 CLR 330; 151 ALR 147; 72 ALJR 152 (23 January 1998).

http://www.austlii.edu.au/au/cases/cth/HCA/1998/3.html

The High Court rejected the “doctrine of general reliance” of Sutherland Shire Council v Heyman (1985) 157 CLR 424 (1985) 157 CLR 424.

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

Northern Sandblasting Pty Ltd v Harris [1997] HCA 39

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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Polycarpou v Australian Wire Industries Pty Ltd [1995] NSWSC 158

ON 14 NOVEMBER 1995, the NSW Court of Appeal delivered Polycarpou v Australian Wire Industries Pty Ltd [1995] NSWSC 158 (14 November 1995).

http://www.austlii.edu.au/au/cases/nsw/NSWSC/1995/158.html

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Rogers v Whitaker [1992] HCA 58

ON 19 NOVEMBER 1992, the High Court of Australia delivered Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 (19 November 1992).

http://www.austlii.edu.au/au/cases/cth/HCA/1992/58.html

Dr Rogers had performed surgery on Whitaker’s right eye, which was almost blind. The surgery should have restored her sight, but instead became blind in the left eye when she suffered sympathetic opthalmia. Whilst the risk was remote, Dr Rogers was held to be negligent in failing to warn Whitaker of the risk.

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Gala v Preston [1991] HCA 18

ON 28 MAY 1991, the High Court of Australia delivered Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 (28 May 1991).

A passenger injured whilst travelling in a car that was used for an unlawful purpose was not entitled to damages for injuries he received when the driver lost control of the vehicle and collided with a tree. The court held that a duty not was owed because there was no relationship of proximity between the parties and in the circumstances the they could not have had “any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care”.

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

ON 24 APRIL 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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Hawkins v Clayton [1988] HCA 15

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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