Category Archives: Negligence

Causation, Damages, LAW FIRM, Negligence, Personal Injury

Medlin v State Government Insurance Commission [1995] HCA 5 | 16 February 1995

ON THIS DAY IN 1995, the High Court of Australia delivered Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; (1995) 127 ALR 180 (1995) Aust Torts Reports 81-322 (16 February 1995).

http://www.austlii.edu.au/au/cases/cth/HCA/1995/5.html

Per Deane, Dawson, Toohey and Gaudron JJ said at [6]:

“For the purposes of the law of negligence, the question whether the requisite causal connexion exists between a particular breach of duty and particular loss or damage is essentially one of fact to be resolved, on the probabilities, as a matter of commonsense and experience. And that remains so in a case such as the present where the question of the existence of the requisite causal connexion is complicated by the intervention of some act or decision of the plaintiff …which constitutes a more immediate cause of the loss or damage. … If, in such a case, it can be seen that the necessary causal connexion would exist if the intervening act or decision be disregarded, the question of causation may often be conveniently expressed in terms of whether the intrusion of that act or decision has had the effect of breaking the chain of causation which would otherwise have existed between the breach of duty and the particular loss or damage. The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant’s wrongful act or omission is, as between the plaintiff and the defendant and as a matter of commonsense and experience, properly to be seen as having caused the relevant loss or damage. Indeed, in some cases, it may be potentially misleading to pose the question of causation in terms of whether an intervening act or decision has interrupted or broken a chain of causation which would otherwise have existed. An example of such a case is where the negligent act or omission was itself a direct or indirect contributing cause of the intervening act or decision.”

Per McHugh J at [20]:

“However, the ultimate question is whether, as a matter of common sense, the financial loss that the plaintiff has suffered was caused by the plaintiff’s act in resigning his office rather than by the defendant’s negligence.”

Per McHugh J at [23]:

“The plaintiff’s complaints of pain and fatigue, his decreasing confidence in his own abilities, his belief that he was no longer teaching as well as he was before the accident and his inability to find time for research combine to make a strong case for concluding that his early retirement was not unreasonable. A defendant cannot reasonably require a plaintiff to remain in employment for the purpose of reducing the damages that the defendant would otherwise have to pay if to do so would interfere with the plaintiff’s reasonable enjoyment of life. The doctrine of mitigation of loss was not intended to turn injured plaintiffs into economic slaves.”

 

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Duty of Care, Employment Law, LAW FIRM, Negligence, Personal Injury, Torts

Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1 | 13 February 1986

ON THIS DAY IN 1986, the High Court of Australia delivered Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 (13 February 1986).

http://www.austlii.edu.au/au/cases/cth/HCA/1986/1.html

Per Mason J at 24:

“The first question to determine is whether the relationship between Brodribb and Gray was one of employer and employee or one of principal and independent contractor…A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the
importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it (Zuijs v. Wirth Brothers Pty Ltd [1955] HCA 73; (1955) 93 CLR 561, at p 571;
Federal Commissioner of Taxation v. Barrett [1973] HCA 49; (1973) 129 CLR 395, at p 402; Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389). In the last-mentioned case Dixon J. said (at p 404):

“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.”

But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of
a number of indicia which must be considered in the determination of that question (Queensland Stations Pty Ltd v. Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539, at p 552; Zuijs’ Case;
Federal Commissioner of Taxation v. Barrett, at p 401; Marshall v. Whittaker’s Building Supply Co. [1963] HCA 26; (1963) 109 CLR 210, at p 218). Other relevant matters include, but are not limited to, the mode of
remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.”

Per Wilson and Dawson JJ at 35:

“The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he shall do it: Performing Right Society, Ld. v. Mitchell and Booker (Palais de Danse), Ld. (1924) 1 KB 762. The modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances.”

Per Brennan J:

“The entrepreneur’s duty arises simply because he is creating the risk (Sutherland Shire Council v. Heyman [1985] HCA 41; (1985) 59 ALJR 564, at p 587; [1985] HCA 41; 60 ALR 1, at p 42) and his duty is more limited than the duty owed by an employer to an employee. The duty to use reasonable care in organizing an activity does not import a duty to avoid any risk of injury; it imports a duty to use reasonable care to avoid unnecessary risks of injury and to minimize other risks of injury. It does not import a duty to retain control of working systems if it is reasonable to engage the services of independent contractors who are competent themselves to control their system of work without supervision by the entrepreneur. The circumstances may make it necessary for the entrepreneur to retain and exercise a supervisory power or to prescribe the respective areas of responsibility of independent contractors if confusion about those areas involves a risk of injury. But once the activity has been organized and its operation is in the hands of independent contractors, liability for negligence by them within the area of their responsibility is not borne vicariously by the entrepreneur. If there is no failure to take reasonable care in the employment of independent contractors competent to control their own systems of work, or in not retaining a supervisory power or in leaving undefined the contractors’ respective areas of responsibility, the entrepreneur is not liable for damage caused merely by a negligent failure of an independent contractor to adopt or follow a safe system of work either within his area of responsibility or in an area of shared responsibility.”

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Pyrenees Shire Council v Day [1998] HCA 3 | 23 January 1998

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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Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Company Ltd (“Wagon Mound No 1”) [1961] UKPC 1 | 18 January 1961

ON 18 January 1961, the Judicial Committee of the Privy Council delivered Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Company Ltd (“Wagon Mound No 1”) [1961] UKPC 1 (18 January 1961)

http://www.bailii.org/uk/cases/UKPC/1961/1.html

In cases of negligence, the defendant is not liable for damage just because it was a direct result of a negligent act. The Privy Council ruled that the “essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen” (at 426).

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

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61 | 23 November 2000

ON 23 NOVEMBER 2000, the High Court of Australia delivered Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254; 176 ALR 411; 75 ALJR 164 (23 November 2000).

http://www.austlii.edu.au/au/cases/cth/HCA/2000/61.html

 

The High Court held that the owner/occupier of a shopping centre did not breach its duty of care to an employee of a tenant who was attacked in the unlit shopping centre car park.

Per Gleeson CJ:

“That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope, or measure of the duty. The nature of the harm suffered was physical injury inflicted by a third party over whose actions the appellant had no control. Thus, any relevant duty must have been a duty related to the security of the first respondent. It must have been a duty, as occupier of land, to take reasonable care to protect people in the position of the first respondent from conduct, including criminal conduct, of third parties.” at [17]

“The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship …, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. … Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable.” [at 35]

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Rogers v Whitaker [1992] HCA 58 | 19 November 1992

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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Jones v Bartlett [2000] HCA 56| 16 November 2000

ON 16 NOVEMBER 2000, the High Court of Australia delivered Jones v Bartlett [2000] HCA 56; 205 CLR 166; 176 ALR 137; 75 ALJR 1 (16 November 2000).

Jones was an adult who received serious injuries when he walked through an interior glass door at the house where he lived with his parents. The house was rented from Bartlett and another by the plaintiff’s parents.

Jones sued Bartlett for damages, alleging negligence, breach of statutory duty and breach of contract. The District Court awarded Jones damages, holding that Bartlett was negligent. The Full Court of the Supreme Court of Western Australia allowed an appeal. Jones then appealed to the High Court, who dismissed his appeal.

The High Court found that the premises were not defective and held that there was no negligence, breach of statutory duty or breach of duty of care on the part of Bartlett.

A landlord’s duty to take reasonable care to avoid foreseeable risk of injury does not require it to make residential premises as safe as reasonable care could make them: per Gaudron J at [87]. The duty owed to the tenants concerns what a reasonable person would do in response to a foreseeable risk of injury.

Per Gleeson CJ:

“There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household. The critical question is as to what is reasonable. The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact. It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness.” at [57].

“There is no such thing as absolute safety. All residential premises contain hazards to their occupants and to visitors. Most dwelling houses could be made safer, if safety were the only consideration. The fact that a house could be made safer does not mean it is dangerous or defective. Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality.The standards in force at the time of the lease reflect this. They did not require thicker or tougher glass to be put into the door that caused the injury unless, for some reason, the glass had to be replaced. That, it is true, is merely the way the standards were framed, and it does not pre-empt the common law. But it reflects common sense. ” at [23].

 

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Hunter and New England Local Health District v McKenna [2014] HCA 44

ON 12 NOVEMBER 2014, the High Court of Australia delivered Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44 (12 November 2014)

The High Court held that Hunter and New England Local Health District did not owe a duty of care to the relatives of a man who was killed by a patient who had been discharged from the Taree Hospital into the deceased man’s care. No duty of care was owed by the hospital or the doctor because they were under statutory obligations under the Mental Health Act prohibiting the detention of a mentally ill patient unless the hospital’s medical superintendent was of the opinion that no other less restrictive care was appropriate and reasonably available.

 

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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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