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1、LAW OF TORTSWeekend Lecture 1BLecturer: Greg YTort of Negligence- Duty of Care 期刊杂志 http:/NEGLIGENCE AND FAULT IN TORTSNEGLIGENT TRESPASS Intentional or negligent act of D which directly causes an injury to the P or his /her property without lawful justification The Elements of Trespass: fault: inte

2、ntional or negligent act injury must be direct injury may be to the P or to his/her property No lawful justificationNEGLIGENT TRESPASS While trespass is always a direct tort, it is not necessarily an intentional act in every instance. It may be committed negligently Negligent trespass is an action i

3、n trespass not in negligence: Where the facts of a case permit, it is possible to frame an action in both trespass and negligence on the same facts Williams v. Molotin (1957) 97 CLR. 465.What is Negligence? It is the neglect of a legal duty It involves the three elements of dutybreach;resultant dama

4、geNegligence: The ElementsDuty of careBreachDamageNegligenceNegligence: The Early Cases Heaven v. Pender (1883) (Defective equipment supplied to plaintiff painter) The dicta of Brett MR: whenever one person is by circumstances placed in such a position with regard to another, that every one of ordin

5、ary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger.Donog

6、hue v. Stevenson Ginger beer-decomposing snail-P has shock-gastroenteritis Privity of contract. Issue was whether D owed P a duty Dicta of Lord Atkin You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is

7、 my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissionsNEGLIGENCE Grant v Australian Knitting Mills (1936) The application of the rule in D v S a manufacturer of products, which he sells in su

8、ch a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury

9、 to the consumers life or property, owes a duty to the consumer to take that reasonable care The dicta of Lord Atkin in Donoghue v Stevenson: whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recogni

10、se that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger. You must take reasonable care to avoid acts or om

11、issions which you can reasonably foresee would be likely to injure your neighbour/anotherNEGLIGENCE: THE DUTY OF CARENegligence: (Duty of Care) The Duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another. When does one owe a duty of care?

12、 Whenever one is engaged in an act which he or she can reasonably foresee would be likely to injure another person, one owes a duty of care to that other personThe Modern Requirements for the Duty of CareJaensch v. Coffey (1984) per Deane J. p587-8 A duty situation would arise from the following com

13、bination of factors A reasonable foreseeability of real risk of injury to P either as an identifiable individual or a member of a class of persons The existence of proximity between the parties with respect to the act or omission Absence of any rule that precludes such a duty What is Reasonable Fore

14、seeability? Reasonable foreseeability presupposes an objective or a reasonable persons standard The reasonable person is an embodiment of community values and what the community expects of a responsible citizen The concept allows us to evaluate Ds conduct not from his or her peculiar position, but f

15、rom that of a reasonable person similarly placed Reasonable foreseeability is a question of law Reasonable Foreseeability: Case Law Nova Mink v. Trans Canada Airlines 1951 (Air traffic noise causing minks to eat their young ones-No foreseeability) Palsgraf v. Long Island R.R. Co. (1928) (Railway gua

16、rds helping falling passenger-fireworks explosion causing injury to plaintiff.-No foreseeability) Chapman v. Hearse (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-action against D who caused initial accident- Foreseeability upheld)The Scope of Reasonable Foreseeability United

17、Novelty Co. v. Daniels (1949) (Workers cleaning coin operated machine with flammable substance-rat in machine runs into fire place causing fire damage and death-Foreseeability upheld) Jaensch v. Coffey (1984) (Car accident-spouse goes to hospital to see injured partner-suffers shock from what she se

18、es and hears of husbands condition-action against D who caused accident-Proximity-Duty-Foreseeability upheld) Proximity Jaensch v. Coffey (1984) (Car accident-spouse goes to hospital to see injured partner-suffers shock from what she sees and hears of husbands condition-action against D who caused a

19、ccident-Proximity-Duty) Gala v. Preston (1991) (Duty relationship between parties engaged in an illegal enterprise-No proximity-No duty) Nagle v. Rottnest Island Authority (1993) (P injured while diving into a rocky pool- pool promoted and operated by D-Proximity, Duty upheld) Held: the board, by en

20、couraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty. require that they be warned of any foreseeable risks of injury associated with the activity so encouraged The Main Features of ProximityPROXIMITYPhysicalCircu

21、mstantialCausalDegree of proximityEvaluation of legal and policy considerations ofwhat is fairand reasonableEvaluationDUTY CATEGORIES: To whom is duty owed? One owes a duty to those so closely and directly affected by his/her conduct that she ought reasonably to have them in contemplation as being s

22、o affected when undertaking the conduct in question. Examples: - Employer/Worker- Driver/Other Road Users- Doctor/Patient- Consumers, users of products and structures Donoghue v Stevenson Voli v Inglewood Shire Council Bryan v Maloney Users of premises etc. Australian Safeway Stores v Zaluzna Proxim

23、ity - Criticised Sullivan v Moody (2001) 207 CLR 562Facts In separate proceedings, fathers were denied access to their children as Dr Moody (employed by the SA Dept of Community Welfare) incorrectly diagnosed sexual abuse; The fathers sued in negligence for psychiatric injury.Judgment Appeals dismis

24、sed as no duty of care exists to protect a suspected abuser from emotional distressGleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:573 “foreseeability of harm is not sufficient to give rise to a duty of care”578 “The formula is not proximity. Notwithstanding the centrality of that concept, for more

25、 than a century it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established”Unborn Child The unborn child: The duty is not simply to take reasonable care in the abstract but to take reasonable care not

26、to injure a person whom it should reasonably be foreseen may be injured by the act or neglect if such care is not taken (Winneke CJ/ Pape J) There can be no justification for distinguishing between the rights of a newly born infant returning home with his /her mother from hospital in a bassinet hidd

27、en from view on the back of a motor car being driven by his proud father and of a child en ventre sa mere whose mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a child ( Per Gillard J in Watt v Rama)- Lynch v Lynch (1991)Unborn Child Wrongful l

28、ife cases Harriton v Stephens 2006 HCA 15 (9 May 2006) The specific duty of care postulated was a duty upon Dr Stephens to diagnose Rubella and then advise Mrs Harriton to terminate the pregancy. Appeal dismissed (7 to 1 majority) Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing), Hayne J and Call

29、inan J in separate judgments dismissed the Appeal Kirby J dissentedHarriton v Stephens Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing) 244 “It was not Dr P R Stephenss fault that Alexia Harriton was injured by the rubella infection of her mother. Once she had been affected by the rubella infecti

30、on of her mother it was not possible for her to enjoy a life free from disability. . Dr P R Stephens would have discharged his duty by diagnosing the rubella and advising Mrs Harriton about her circumstances, enabling her to decide whether to terminate her pregnancy; he could not require or compel M

31、rs Harriton to have an abortion. ”Harriton v StephensCrennan J (Gleeson CJ, Gummow & Heydon JJ agreeing) 249 “It is not to be doubted that a doctor has a duty to advise a mother of problems arising in her pregnancy, and that a doctor has a duty of care to a foetus which may be mediated through the m

32、other403. However, it must be mentioned that those duties are not determinative of the specific question here, namely whether the particular damage claimed in this case by the child engages a duty of care. To superimpose a further duty of care on a doctor to a foetus (when born) to advise the mother

33、 so that she can terminate a pregnancy in the interest of the foetus in not being born, which may or may not be compatible with the same doctors duty of care to the mother in respect of her interests, has the capacity to introduce conflict, even incoherence, into the body of relevant legal principle

34、 ”Harriton v Stephens Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing) 251 & 252 “Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss, deprivation or detrim

35、ent caused by the alleged breach of duty. . In the Court of Appeal, Spigelman CJ recognised that in cases of this kind, to find damage which gives rise to a right to compensation it must be established that non-existence is preferable to life with .A comparison between a life with disabilities and n

36、on-existence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible. ”RESCUERS There are two separate issues in rescue: The duty to rescue The duty of care owed to the rescuer There is no positive legal obligation in the common

37、law to rescue - The law does not cast a duty upon a man to go to the aid of another who is in peril or distress, not caused by him There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance Horsley v Macleran (The Ogopogo) (1971) 22 DL

38、R One is only required to use reasonable care and skill in the rescue THE DUTY OWED TO RESCUERS The rescuer is generally protected : torts recognizes the existence of a duty of care owed to the rescuer The issue of volenti-non fit injuria: This principle does not seem to apply in modern tort law to

39、rescue situations Note however the case of Sylvester v GB Chapman Ltd (1935) :attack by leopard while attempting to put out a smoldering cigarette in strawTHE DUTY OWED TO RESCUERSThe cry of danger is the summons to relief. The law does not ignore these reactions of the mind. It recognizes them as n

40、ormal and places their effects within the range of of the natural and the probable and for that matter the foreseeable per Cardozo J in Wagner v International Railway Co. (1921)- Chapman v Hearse- Videan v British Transport Commission (1963) (rescue attempt to get a child trespassing on railway line

41、)Rescuers may recover for both physical injuries and nervous shock- Mount Isa Mines v Pussey (1970)The US fire-fighters Rule does not apply in Australia and the UK- Ogwo v Taylor (1988) AC 431Unforeseeable Plaintiffs In general the duty is owed to only the foreseeable plaintiff and not abnormal Plai

42、ntiffs. Bourhill v Young 1943 AC 92 Levi v Colgate-Palmolive (1941) Haley v L.E.B. 1965 AC 778 IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY OF CARE The Civil Liability Act 2002 together with the Civil Liability Amendment (Personal Responsibility) Act 2002 govern the law of negligence in NSW. The Ci

43、vil Liability Act 2002 was enacted 28th May 2002 and received assent on 18 June 2002 Rationale behind the legislation: to limit the quantum of damages for personal injury and death in public liability instances; resultantly lowering insurance premiums. to discourage over litigation, by the impositio

44、n of restrictions and obligations and responsibilities upon plaintiffs and counsel The Rationale for Reform Its my view that this country is tying itself up in tape because of over litigation, a long-term trend to see us litigate for everything, to try to settle every problem in our lives.by getting

45、 a big cash payment from the courts.a country as small as ours cant afford to have the American-style culture of litigation. (Bob Carr)The Rationale for Reform We need to restore personal responsibility and diminish the culture of blame.That means a fundamental re-think of the law of negligence, a c

46、omplex task of legislative drafting.There is no precedent for what we are doing, either in health care or motor accident law, or in the legislation of other States and Territories.We are changing a body of law that has taken the courts 70 years to develop (Bob Carr)The Approach to Reform: Government

47、s View We propose to change the law to exclude claims that should never be brought and provide defences to ensure that people who have done the right thing are not made to pay just because they have access to insurance We want to protect good samaritans who help in emergencies. As a community, we sh

48、ould be reluctant to expose people who help others to the risk of being judged after the event to have not helped well enough (Bob Carr)Torts Law Reform: Stage 1 The 1st stage aimed both at the number of claims as well as at the cost of claims restriction of legal advertising, minimising the promoti

49、on of claims and a restriction on the amount recoverable for legal costs capping damages, applying a higher discount rate to the final lump sum figure, and the abolition of punitive damages Torts Law Reform: Stage 2 The 2nd Stage: reforms include a range of broad-based tort reform measures, includin

50、g a fundamental re-assessment of the law of negligence addressing the concept of reasonable foreseeability in the law of negligence; protection of good samaritans who assist in emergencies; waivers for risky activities; statutory immunity for local government; public authorities which fail to exerci

51、se their powers will not breach any duty; changing the test for professional negligence to one of peer acceptance; abolishing reliance by plaintiffs on their own intoxication; preventing people from making claims where they were injured in the course of committing a crime; provide a wider range of o

52、ptions for damages; creating a presumption in favour of structured settlements. Claims excluded from operation of the Civil Liability Act: s3B(1)a) an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct. Note Part 7 does not apply to

53、 intentional torts done with intent to injure.(b) dust diseases under the Dust Diseases Tribunal Act 1989 (c) personal injury damages where the injury or death concerned resulted from smoking or other use of tobacco products(d) actions governed by Part 6 of the Motor Accidents Act 1988 and Chapter 5

54、 of the Motor Accidents Compensation Act 1999 except the provisions that subsection (2) provides apply to motor accidents(e) Workers Compensation Act 1987, Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, Workers Compensation (Dust Diseases) 1942, Victims Support and Rehabil

55、itation Act 1996 or Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978THE CIVIL LIABILITY AMENDMENT (PERSONAL RESPONSIBILITY) ACT Part 1A Division incorporates statutory reform to the law of negligence in Sections 5A to 5T Commenced 6/12/02, except Secti

56、on 5N applies to breaches of warranties which occur after 10/1/03 5A scope of applicationThe part applies to any claims in negligence regardless of whether the claim is brought in tort, contract, under statute or otherwiseDuty of Care S 5B:(1) A person is not negligent in failing to take precautions

57、 against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the persons position would have taken those precautions. (2) In determini

58、ng whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautio

59、ns to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.Duty of Care commentary Section 5B(1) provides a person is not negligent unless (b) the risk was not insignificant.- Wyong Shire Council v Shirt (1980) 146 CLR 40: risk must be “real” in the sense that

60、 a reasonable person would not “brush it aside as far-fetched or fanciful.”- It is unclear whether “not insignificant” in Section 5B(1)(b) is more restrictive than “not far-fetched or fanciful” in Wyong Shire Council v ShirtDuty of Care5C Other principles In proceedings relating to liability for neg