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The Law of The Law of Torts Torts Negligence Negligence Particular Duty Areas: Particular Duty Areas: Abnormal Plaintiffs Abnormal Plaintiffs Unborn Children Unborn Children Mental Harm Mental Harm Rescuers Rescuers

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Page 1: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

The Law of TortsThe Law of TortsNegligence Negligence

Particular Duty Areas: Particular Duty Areas:

Abnormal PlaintiffsAbnormal Plaintiffs

Unborn ChildrenUnborn Children

Mental HarmMental Harm

RescuersRescuers

Page 2: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

S5 CLAS5 CLA

““negligence" negligence" means failure to means failure to exercise reasonable care and skill.exercise reasonable care and skill.

Page 3: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Negligence: The ElementsNegligence: The Elements

Duty of care

Breach

Damage

Negligence

Page 4: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Negligence: (Duty of Care)Negligence: (Duty of Care)

The Duty of care is the obligation to The Duty of care is the obligation to avoid acts or omissions which are avoid acts or omissions which are reasonably foreseeable to cause reasonably foreseeable to cause damage to another.damage to another.

When does one owe a duty of care?When does one owe a duty of care? Whenever one is engaged in an act which he Whenever one is engaged in an act which he

or she can reasonably foresee would be likely or she can reasonably foresee would be likely to injure another person, one owes a duty of to injure another person, one owes a duty of care to that other personcare to that other person

Page 5: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

General Principles: The CLAGeneral Principles: The CLA S 5B:(1) A person is not negligent in failing to take S 5B:(1) A person is not negligent in failing to take

precautions against a risk of harm unless:precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the (a) the risk was foreseeable (that is, it is a risk of which the person knewperson knew or or

ought to have known), andought to have known), and (b) the risk was not (b) the risk was not insignificantinsignificant, and, and (c) in the circumstances, a reasonable person in the person(c) in the circumstances, a reasonable person in the person ’’s position would s position would

have taken those precautions.have taken those precautions. (2) In determining whether a reasonable person would (2) In determining whether a reasonable person would

have taken precautions against a risk of harm, the court is have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken,(a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm,(b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm,(c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.(d) the social utility of the activity that creates the risk of harm.

Page 6: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

What is Reasonable What is Reasonable Foreseeability?Foreseeability?

Reasonable foreseeability presupposes an Reasonable foreseeability presupposes an objective or a reasonable personobjective or a reasonable person’’s standards standard

The reasonable person is an embodiment of The reasonable person is an embodiment of community values and what the community community values and what the community expects of a responsible citizenexpects of a responsible citizen

The concept allows us to evaluate DThe concept allows us to evaluate D’’s conduct s conduct not from his or her peculiar position, but from not from his or her peculiar position, but from that of a reasonable person similarly placedthat of a reasonable person similarly placed

Reasonable foreseeability is a question of law Reasonable foreseeability is a question of law

Page 7: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Reasonable Foreseeability: Reasonable Foreseeability: Case LawCase Law

Nova Mink v. Trans Canada AirlinesNova Mink v. Trans Canada Airlines [1951] (Air [1951] (Air traffic noise causing minks to eat their young ones-traffic noise causing minks to eat their young ones-No foreseeability) No foreseeability)

United Novelty Co. v Daniels 42 So. 2nd 395 Miss 1949

Palsgraf v. Long Island R.R. Co. (1928) Palsgraf v. Long Island R.R. Co. (1928) (Railway (Railway guards helping falling passenger-fireworks explosion guards helping falling passenger-fireworks explosion causing injury to plaintiff.-No foreseeability)causing injury to plaintiff.-No foreseeability)

Chapman v. HearseChapman v. Hearse (1961) (Car accident-Dr. stops (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-action against to help-gets killed by another vehicle-action against D who caused initial accident- Foreseeability upheld)D who caused initial accident- Foreseeability upheld)

Page 8: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

[5] DUTY CATEGORIES: To [5] DUTY CATEGORIES: To whom is duty owed?whom is duty owed? One owes a duty to those One owes a duty to those so closely and directly so closely and directly

affectedaffected by his/her conduct that she ought reasonably by his/her conduct that she ought reasonably to have them in contemplation as being so affected to have them in contemplation as being so affected when undertaking the conduct in question.when undertaking the conduct in question.

Examples:Examples: Consumers, users of products and structuresConsumers, users of products and structures

Donoghue v StevensonDonoghue v Stevenson Grant v Australian Kitting Mills Grant v Australian Kitting Mills Bryan Bryan v v Maloney Maloney

Road usersRoad users Bourhill v YoungBourhill v Young

Users and purchasers of premises etc.Users and purchasers of premises etc. Australian Safeway Stores v Zaluzna Australian Safeway Stores v Zaluzna

Page 9: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

The Unborn ChildThe Unborn Child

In general, a duty of care may be owed to In general, a duty of care may be owed to P before birthP before birth Watt v. RamaWatt v. Rama: : ““the possibility of injury on birth the possibility of injury on birth

to the child was… reasonably foreseeable…On to the child was… reasonably foreseeable…On the birth the relationship crystallised and out of the birth the relationship crystallised and out of it arose a duty on the D…it arose a duty on the D…””

X v. PalX v. Pal: Duty to a child not conceived at the : Duty to a child not conceived at the time of the negligent acttime of the negligent act

Lynch v. Lynch:Mother liable in neg to her own Lynch v. Lynch:Mother liable in neg to her own foetus injured as result of motherfoetus injured as result of mother’’s neg driving.s neg driving.

Page 10: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

( Per Gillard J in ( Per Gillard J in Watt v Watt v RamaRama))

The unborn child: The unborn child: There can be no justification for distinguishing There can be no justification for distinguishing

between the rights… of a newly born infant between the rights… of a newly born infant returning home with his /her mother from returning home with his /her mother from hospital in a bassinet hidden from view on the hospital in a bassinet hidden from view on the back of a motor car being driven by his proud back of a motor car being driven by his proud father and of a child father and of a child en ventre sa mere en ventre sa mere whose whose mother is being driven by her anxious mother is being driven by her anxious husband to the hospital on way to the labour husband to the hospital on way to the labour ward to deliver such a childward to deliver such a child

Page 11: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Unforeseeable PlaintiffsUnforeseeable Plaintiffs

In general the duty is owed to In general the duty is owed to only the foreseeable plaintiff only the foreseeable plaintiff and not abnormal Plaintiffs. and not abnormal Plaintiffs. Bourhill v YoungBourhill v Young [1943] AC 92 [1943] AC 92 Levi v Colgate-Palmolive LtdLevi v Colgate-Palmolive Ltd Haley v L.E.B.Haley v L.E.B. [1965] AC 778 [1965] AC 778

Page 12: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Wrongful Birth Claims Wrongful Birth Claims Claims by parents in respect of the birth of a Claims by parents in respect of the birth of a

child who would not have been born but for the child who would not have been born but for the DD ’’s negligence.s negligence. Vievers v Connolly (1995) 2 Qd R 325 Vievers v Connolly (1995) 2 Qd R 325 (Mother of (Mother of

disabled child born bec. Pl lost opportunity to lawfully disabled child born bec. Pl lost opportunity to lawfully terminate pregnancy. Damages included costs for terminate pregnancy. Damages included costs for past & future care of child for 30 years.)past & future care of child for 30 years.)

CES v Superclinics (1995-6) 38 NSWLR 47CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost Mother lost opportunity to terminate pregnancy as a result of Dopportunity to terminate pregnancy as a result of D ’’s s neg failure to diagnose pregnancy. NSW Ct of Appeal neg failure to diagnose pregnancy. NSW Ct of Appeal held claim maintainable but damages not to include held claim maintainable but damages not to include costs of raising the chills as adoption was an option.costs of raising the chills as adoption was an option.

Melchior v Cattanach [2003] HCAMelchior v Cattanach [2003] HCA Mother of healthy Mother of healthy child after failed sterilization procedure. Qld CT Appeal child after failed sterilization procedure. Qld CT Appeal held damages shld include reasonable costs of raising held damages shld include reasonable costs of raising the child. High Ct agreed on appealthe child. High Ct agreed on appeal

Page 13: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

CLA Part 11 s71CLA Part 11 s71 In any proceedings involving a claim for the In any proceedings involving a claim for the

birth of a child to which this Part applies, the birth of a child to which this Part applies, the court cannot award damages for economic loss court cannot award damages for economic loss for: (a) the costs associated with rearing or for: (a) the costs associated with rearing or maintaining the child that the claimant has maintaining the child that the claimant has incurred or will incur in the future, or (b) any incurred or will incur in the future, or (b) any loss of earnings by the claimant while the loss of earnings by the claimant while the claimant rears or maintains the child. (2) claimant rears or maintains the child. (2) Subsection (1) (a) does not preclude the Subsection (1) (a) does not preclude the recovery of any additional costs associated with recovery of any additional costs associated with rearing or maintaining a child who suffers from rearing or maintaining a child who suffers from a disability that arise by reason of the disability.a disability that arise by reason of the disability.

Page 14: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Wrongful Life ClaimsWrongful Life Claims

Claim by child born as a result of Claim by child born as a result of negligent treatment by De of childnegligent treatment by De of child ’’s s parent.parent.

Bannerman v Mills (1991) ATR 81-079. Bannerman v Mills (1991) ATR 81-079. Summary dismissal of claim by child born Summary dismissal of claim by child born with disabilities as result of mother with disabilities as result of mother having rubella whilst pregnant. having rubella whilst pregnant. Tort of Tort of wrongful life unknown to common lawwrongful life unknown to common law

Page 15: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Wrongful Life ClaimsWrongful Life Claims Edwards v BlomeleyEdwards v Blomeley; ; Harriton v StevensHarriton v Stevens; ; Waller v Waller v

JamesJames (2002 ) NSW Supreme Court, Studdert J. (2002 ) NSW Supreme Court, Studdert J.             No duty of care to prevent birthNo duty of care to prevent birth             Policy reasons -Policy reasons -

1.1. Sanctity & value of human lifeSanctity & value of human life 2.2. impact of such claim on self-esteem of disabled impact of such claim on self-esteem of disabled

personspersons 3.3. exposure to liability of mother who continued with exposure to liability of mother who continued with

pregnancypregnancy 4.4.PlaintiffsPlaintiffs’’ damage not recognizable at law - would damage not recognizable at law - would

involve comparison of value of disabled life with value involve comparison of value of disabled life with value of non-existenceof non-existence

5.5.Impossibility of assessment of damages in money Impossibility of assessment of damages in money terms - taking non-existence as a point of comparison.terms - taking non-existence as a point of comparison.  

Page 16: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Abnormal Plaintiffs and Abnormal Plaintiffs and Particularly Sensitive Particularly Sensitive PlaintiffsPlaintiffs

To be liable, P must show that she/he To be liable, P must show that she/he was foreseeable. In general the was foreseeable. In general the abnormal P is not foreseeableabnormal P is not foreseeable

There is a distinction to be drown There is a distinction to be drown between the between the abnormalabnormal Plaintiff and the Plaintiff and the particularlyparticularly sensitive Plaintiff sensitive Plaintiff

Page 17: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Abnormal PlaintiffsAbnormal Plaintiffs

In general where D is negligent, D In general where D is negligent, D takes P as he /she finds P. Any takes P as he /she finds P. Any unusual condition that aggravates unusual condition that aggravates the damage cannot be used by D the damage cannot be used by D as a defenceas a defence Haley v. London Electricity Bd. Haley v. London Electricity Bd. AA blind blind

P held not to be abnormal: D P held not to be abnormal: D ““ought to ought to anticipate the presence of such anticipate the presence of such person within the scope and hazard of person within the scope and hazard of their operationstheir operations””

Page 18: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Particularly Sensitive Particularly Sensitive PlaintiffPlaintiff

Where P suffers damage because of a Where P suffers damage because of a particular sensitivity in circumstances particular sensitivity in circumstances where Dwhere D’’s conduct is not considered a s conduct is not considered a breach, P cannot claimbreach, P cannot claim

Levi. V Colgate PalmoliveLevi. V Colgate Palmolive ““the bath salts supplied to P were the bath salts supplied to P were

innocuous to normal persons… the skin innocuous to normal persons… the skin irritation which she suffered…was irritation which she suffered…was attributable exclusively to attributable exclusively to hypersensitivenesshypersensitiveness””  

Page 19: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

CLA s 32 CLA s 32 Mental harm--Mental harm--duty of careduty of care

(1) A person ( (1) A person ( the defendantthe defendant ) does not owe a duty of care to ) does not owe a duty of care to another person ( another person ( the plaintiffthe plaintiff ) to take care not to cause the ) to take care not to cause the plaintiff mental harm unless the defendant ought to have plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. if reasonable care were not taken.

(2) For the purposes of the application of this section in respect (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the of pure mental harm, the circumstances of the case include the following: following:

(a) whether or not the mental harm was suffered as the result of (a) whether or not the mental harm was suffered as the result of a sudden shock, a sudden shock,

(b) whether the plaintiff witnessed, at the scene, a person being (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, killed, injured or put in peril,

(c) the nature of the relationship between the plaintiff and any (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, person killed, injured or put in peril,

(d) whether or not there was a pre-existing relationship between (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. the plaintiff and the defendant.

Page 20: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

Defective PremisesDefective Premises

In general the occupier of premises owes In general the occupier of premises owes a duty of care to persons who come on to a duty of care to persons who come on to the premisesthe premises

While the notion of occupier's liability While the notion of occupier's liability may have developed initially as a may have developed initially as a separate category of tort law, it now separate category of tort law, it now considered under the general principles considered under the general principles of negligenceof negligence ZaluznaZaluzna v Australian Safeway Stores v Australian Safeway Stores

Strong v WoolworthsStrong v Woolworths Limited [2012] HCA Limited [2012] HCA 55

Page 21: The Law of Torts Negligence Particular Duty Areas: Abnormal Plaintiffs Unborn Children Mental Harm Rescuers

OccupiersOccupiers’’ Liability Liability

What are Premises?What are Premises? -Land and fixtures-Land and fixtures -but Cts have used wide -but Cts have used wide

interpretations including moveable interpretations including moveable structures eg:structures eg:

scaffolding (scaffolding (London Graving Dock v. London Graving Dock v. Horton [1951] AC 737Horton [1951] AC 737

Ships and gangways eg. Swinton v. Ships and gangways eg. Swinton v. China Mutual Steam Navigation Co Ltd China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553(1951) 83 CLR 553