Category Archives: Negligence

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

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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Damages, Duty of Care, LAW FIRM, Negligence

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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Duty of Care, Employer's liability, LAW FIRM, Negligence, Personal Injury

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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Contract, Employer's liability, Employment Law, LAW FIRM, Motor Accidents, Negligence, Work injuries

Hollis v Vabu Pty Ltd [2001] HCA 44 | 9 August 2001

ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).

http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html

The plaintiff was a pedestrian who was injured when a bike courier collided with him on a footpath.  The defendant was the courier company who engaged the cyclist. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.

The High Court allowed an appeal by the cyclist,  holding that the cyclist was not an independent contractor because:

  • no discretion to accept or reject work.
  • stringent roster system.
  • clear rules on taking annual leave.
  • little or no scope for freelancing.
  • no special skills.
  • cyclists were identified with the company with uniforms and a dress code.
  • pay and conditions were consistent with an employment relationship.
  • no scope for bargaining of rates.
  • the provision of the bikes as necessary tools and equipment was not inconsistent with an employment relationship
  • the exercise of control by the company over the courier’s activities.

The relevant considerations for determining whether or not a person is an independent contractor include:

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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Damages, LAW FIRM, Negligence

Fox v Wood [1981] HCA 41 | 7 August 1981

ON 7 AUGUST 1981, the High Court of Australia delivered Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 (7 August 1981).

http://www.austlii.edu.au/au/cases/cth/HCA/1981/41.html

A plaintiff who claims common law damages for personal injuries, including damages for net loss of earnings, is entitled to also claim the tax he or she has paid on any refundable workers compensation weekly payments (related to those injuries) received before recovering the damages.

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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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Appeals, Causation, Negligence, Personal Injury

Bunnings Group Ltd v Borg [2014] NSWCA 240

ON 28 JULY 2014, the NSW Court of Appeal delivered Bunnings Group Ltd v Borg [2014] NSWCA 240.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=172896

The Court of Appeal allowed an appeal against a District Court decision awarding damages to customer of Bunnings Dural who was injured when some timber sleepers fell off a forklift onto his foot.

The Court of Appeal found that there was insufficient factual findings to come to the conclusion of negligence: there was conflicting evidence of the tilting of the forklift and no evidence about effect of warning or what would have occurred if there were more staff.

The Court of Appeal found that there were insufficient findings for it to make a substituted judgment.

The Court of Appeal set aside the verdict and ordered a retrial on the grounds that the trial judge failed to make clear findings about breach and causation as required under the Civil Liability Act 2002, ss 5B, 5C, 5D and 5E.

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Defences, Negligence, Personal Injury, Work injuries

Smith v Charles Baker & Sons House of Lords [1891] UKHL 2 | 21 July 1891

ON 21 JULY 1891, the House of Lords delivered Smith v Charles Baker & Sons [1891] UKHL 2 (21 July 1891).

http://www.bailii.org/uk/cases/UKHL/1891/2.html

The English Court of Appeal had held that a railway worker could not recover damages for his injuries because he had voluntarily assumed the risk (volenti non fit injuria).

On appeal, the House of Lords held that the worker was not barred from recovery by the mere fact that he continued to work with the knowledge of the risk or danger. Whether or not the worker has assented to the risk is a question of fact not law.

The House of Lords reversed the Court of Appeal decision, holding that there was no evidence to find that the worker consented to the particular risk that caused his injuries.

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Damages, Medical negligence, Negligence

Cattanach v Melchior [2003] HCA 38 | 16 July 2003

ON 16 JULY 2003, the High Court of Australia delivered Cattanach v Melchior [2003] HCA 38; 215 CLR 1; 199 ALR 131; 77 ALJR 1312 (16 July 2003).

http://www.austlii.edu.au/au/cases/cth/HCA/2003/38.html

A woman went to a doctor for a sterilisation procedure as she and her husband did not intend to have any more children. She told the doctor that she believed that her right fallopian tube had been removed when she was 15. The doctor performed a tubal ligation on the left fallopian tube and made no further investigation regarding the right tube. As it turned out, the right tube had not been removed and the woman later fell pregnant, unintentionally.

The woman and her husband sued the doctor and the State of Queensland (who ran the hospital) seeking damages for negligence on the grounds that the doctor failed to advise the woman of the risks of conceiving without specific investigation of the right fallopian tube.

The woman and her husband were awarded damages for the costs of raising and maintaining the healthy but unintended child, despite those damages being for pure economic loss (ie not arising from any actual injury).

The Civil Liability Acts have since prohibited awards of damages for the costs of rearing or maintaining a child or the parents’ loss of earnings whilst rearing or maintaining a child.

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