BLAW 212- Second Sem

Negligence: Breach of expected standard of care where there is a requirement or duty of care.

Elements

Foreseeability Principle: take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour

Who is your neighbour? persons who are so closely and directly affected by my act that I ought reasonably to have them in mind when I act.

Loss

Causation

Breach

Remote/proximate

Duty

Calculation of monetary compensation

2 elements: 1. Relationship between parties 2.policy factors which negate, restrict or strengthen the recognition of the existence of the Duty of Care?

Temporal proximity(time)

Physical proximity(place)

MEAH v McCREAMER [1986]

Car accident caused from negligent driving, head injuries occur. Girl gets raped. Too remote= indefinite liability for an indefinite time

DORSET YACHT CLUB v HOME OFFICE [1970]

Borstal trainees working. Home Office liable to yacht club.

BOURHILL v YOUNG

Young negligently road a motorcycle and was involved in a collision with a car fatally injuring himself. Not sufficiently foreseeable or proximate and no duty of care.

COUCH v ATTORNEY GENERAL [2010]

Susan Couch was seriously injured by William Bell during his attack at the Panmure RSA in 2001.
Bell was on parole at the time. duty of care could exist between Couch and the Department.

PALSGRAF v LONG ISLAND RAILWAY

Thought someone was falling so was helped by staff, dropped bags and was full of fireworks. Scales fell and apparently damaged a bystander.

ROLLS ROYCE NZ LTD v CARTER HOLT

Foreseeability principle: CCH contracted with power company for construction of power plant. RR was a sub-contractor. Limitation clause in contract between power company and RR.

Reasonable person test

"Negligence is the omission to do something which a reasonable man

Special vulnerability

How expensive and practicable are the precautions.

Gravity of risk

Social value of activity

Probability of harm

Bolton v STONE

batsman from that team hit the ball out of the ground for a 6

PARIS v STEPNEY BOROUGH COUNCIL

click to edit

He had suffered a war injury that left him with sight in only one eye. Worked as garage hand


HELD: Council was aware of his special circumstances and failed in their duty of care to

SCOT v LONDON AND ST KATHERINE'S DOCK

MUST OF ACTUALLY SUFFERED LOSS

  1. Among the mix of possible causes, was the Defendant's conduct significant enough for liability to follow? (Remoteness)
  1. Has the chain of causation been broken?
  1. Was the Defendant's conduct one of the causes of the Plaintiff's loss?

BUT FOR TEST

B) Multiple causes:
"But For" test is complicated when there is more than one possible cause of the loss;
Conduct of the Defendant does not have to be the sole, or dominant, cause of the loss

A) Defendant's conduct is not a cause of the harm if the harm to the Plaintiff would have occurred anyway

BARNETT v CHELSEA HOSPITAL

:Barnett went to hospital complaining of severe stomach pains and vomiting.


HELD: Hospital not liable as doctor's failure to examine the patient did not cause his death.

SOUTH AUSTRALIA ASSET MANAGEMENT v YORK MONTAGUE

property crash, bank's were suing valuers for over-pricing houses in order to recover the lost market value.
Valuer had negligently advised his client bank that a property was worth more than it's actual market value.

BARKER v PERMANENT SEAMLESS FLOORS

toxic hepatic necrosis consistent with exposure to 5 toxic chemicals that were used in his employment. BUT FOR TEST anyone of them could have caused the injury

BUTFOR: INDIVISIBLE LOSS

Impossible to link particular actions to particular loss.

COOK v LEWIS [1952]

Two hunters fired two shots at the same time. One hit the plaintiff and was injured.

Breaking the chain of causation

Chapman v Hearse (1961). SHIP crash, heads back and then collides with another ship

OVERSEAS TANKSHIPS (UK) v MORTS DOCK AND ENGINEERING CO LTD [1961] (UK)

D's employees negligently spilled oil in Sydney Harbour in 1981.
Oil drifted under P's wharf and set it alight as welders were working on the wharf.

REMOTENESS EGGSHELL SKULL PRINCIPLE Wrongdoer must take the victim as they find them

A-G v GEOTHERMAL PRODUCE

LAGDEN v O'CONNOR

Plaintiff's roses at a time when the Plaintiffs were just starting an ambitious growing programme. Immaterial that did not know full extent of opperations at the time

D struck C's car.
C was poor and had to hire a car from a car hire company that charged more because he did not pay upfront.

Negligent Misstatement: fact or opinion inducing reliance by another and resulting in him/her suffering loss.

Does Negligent Misstatement have a higher than negligence?

Less careful in words than actions.
"Off the cuff" advice.
Appropriate standard of care.
Almost limitless range of plaintiffs.
Might undermine contract.
Causation issues (reliance).

HEADLEY BYRNE & CO LTD v HELLER & PARTNERS LTD

HB(advertising agents) asked E's bankers, H, for a report on E's credit-worthiness.
H said E:
"respectably constituted"; Claimed that they had no responsibiliy

DUTY: SPECIAL RELATIONSHIP

Must be reasonable for Plaintiff to rely on what Defendant says:
Skilled person acting in a business context gives advice directly. PERSON WILL RELY ON THE INFORMATION

ADVICE/STATEMENT

Fact or opinion.
Spoken or written.
Inference.

Skilled person test: BUSINESS CONTEXT

MLC Assurance Co v Evatt [1971] (HL)

MLC ASSURANCE CO v EVATT [1971] (HL)

MLC substantial shareholder in H G Palmer ltd.
MLC circulate suggesting investment in HG Palmer(Which was a mud company) Mr Evatt lost investment. Business wasn't created to give advice regarding investments

CAPITAL MOTORS LTD v BEECHAM [1975]

Beecham purchased a 2nd hand car. Dealer said had only been 2 owners. Purchasers car and turns put that there was 5 owners. Duty owed as should have known as salesman.

DAY v OST [1973]

Architect assured a sub-contractor who had stopped work because he had not been paid that there were ample funds available to cover his costs.
On this reassurance the sub-contractor recommenced work. Duty was owed

When does a RELATIONSHIP exist for knowledge?

  1. Advice required for a purpose made known (actually or inferentially) at time advice is given;
  2. Adviser knows advice will be communicated to advisee and used for that purpose;
  3. Known the advice is likely to be acted on for that purpose without independent inquiry;
    It is acted upon to advisee's detriment.

TREVOR IVORY v ANDERSON

Personal assumption of responsibility directly to third parties?
T I Limited gave advice to Andersons (orchardists).
Advice negligent and raspberry crop destroyed.
HELD: Mere mouthpiece.

NEGLIGENT PROMISE/STATEMENT OF INTENTION

Meates v Attorney-General [1983] (CA)

  1. Promise is made by someone who intends it to be acted on;
  2. The Promisor has the power to do what is promised; and
  3. The Promisor failed to take reasonable steps to carry out the promise.

MEATES v ATTORNEY-GENERAL [1983] (CA)

72 general election entered into discussions with the PM regarding establishing industries in the west coast. Govt policy promoting Meates but govt had not been forthcoming.

DUTY

Attorney-General v Carter

Negligence in issuing certificate of survey of a ship.
Plaintiff relied on survey in purchasing ship.
HELD: Is it fair, just and reasonable to require the Defendant to take reasonable care to avoid loss to the Plaintiff?

BREACH, LOSS, CAUSATION

Boyd Knight v Purdue

Audit report included in prospectus failed to detect serious fraud and irregularities;
HELD: Was sufficient closeness BUT insufficient evidence investors read and relied on reports.


Other examples: Motivated by other factors; loss happened anyway; loss incurred before statement made.

FTA section 13

VICARIOUS LIABILITY: EMPLOYEES

  1. Is the wrong-doer an employee or an independent contractor?
  1. Is the conduct connected with the employee's job? (is there a sufficient close connection between the Tort and the scope of employment)

Lee Ting Sang v Chung Chi-Keung (PC)

Is he an employee. Claim compensation for work injury
Run a building firm, sign all independent contractors. Don't decide independent contractor or employee. KEY THING: DAILY RATE instead of lump sum

TESTS: EMPLOYEE OR INDEPENDENT CONTRACTOR?

Control Test:

  1. Does A have the right to tell B what to do and how to do it?(Where you work and what you do)

The Organisation Test:

  1. How integrated is B into A's organisation? Does A organise the overall pattern of work (details may be left to B)? (Plumber will come and go, looks like an independent contractor)

The Financial Risk Test:
3.Who takes the financial risks? (the costs of equipment/machinery, the risk of non-payment)?
(if someone doesn't pay who's liable)

Is the wrong so connected with the employment that the employer has introduced the risk of the wrong?


Has the employer created an opportunity for an abuse of power?

BAZLEY v CURRY [1999] (CANADA SUPREME COURT)

Councillor!!!!Employer liable for employee's sexual abuse of children in his care.
Strong connection between role he was required to play ("parent figure") and the opportunity to carry out the wrongful act. Strong connections with role. Strong connections with role.

JACOBI v GRIFFITHS [1999] (CANADA SUPREME COURT)

Employer not liable for employee's sexual abuse of children who attended the club.
No opportunity created by work. NOT PLACED IN SPECIAL POSITION OF TRUST

LISTER v HESLEY HALL LTD [2002] (HL)

Employer liable for employee's sexual abuse of children.
Warden's duties provided opportunity to commit sexual assaults.

AUTHORISATIONS, PROHIBITIONS, FROLICS

LIMPUS v LONDON GENERAL OMNIBUS

Instruction: Do not race or obstruct.
Driver pulled in front of another rival omnibus to obstruct it.
Held: Liable - this was still part of the driving - an unauthorised mode of the employee carrying out his duties.

Beard v London General Omnibus

Conductor choose to drive the bus. Out of duty of job so employer was not liable

Joel v Morrison (1834)

Joel struck down by a horse and cart driven by Morrison's agent.
Driver had detoured from his route to visit a friend.

Attorney General v Hartley

Truck driver picked up a child from the road side when driving to work and brought the child to work;
Child set an unattended trolley in operation and another employee was injured;

VICARIOUS LIABILITY FOR NON-EMPLOYEES

Partnership Act 1908, s13: Firm is liable for the wrongful acts or omissions of partners acting in the ordinary course of business;

CLASPER v DUNS & POST

D & P were chartered accountants.
C sued them over mismanagement of trust funds.


Being trustee is part of the ordinary course of business.

Agents

Agent = person who is authorised to act on behalf of another (the Principal);
The Principal is vicariously liable for the actions of an agent IF the agent is acting with actual authority or apparent/ostensible"

COMPENSATORY DAMAGES

CHAPLIN v HICKS [1860]

Defendant in breach of contract prevented Plaintiff from taking part in the final stage of a beauty contest.
In the final 12 of the final 50 (6,000 original entrants) would be rewarded with places in a chorus line.
Held: Plaintiff awarded damages for loss of a chance of winning the competition - assessed at 25%.

QUANTUM OF DAMAGE:put the Plaintiff in to the position they would have been in if the tort had never been committed in the first place.

QUANTUM OF DAMAGE - Betterment

BRITISH WESTINGHOUSE ELECTRIC AND MANUFACTURING CO v UNDERGROUND ELECTRIC RAIL CO [1912] (UK) (CA)

Held: Plaintiffs not required to buy new turbines but had done so with a gain in profits and saved expenses. These exceeded the cost of the machines so Plaintiffs recovered nothing.

ECONOMIC LOSS

GARTSIDE v SHEFFIELD YOUNG AND ELLIS

Lawyer delayed in attending an elderly and ailing client to complete a Will.
Client died without changing a Will.
Intended beneficiary able to sue the lawyer.

BENTON v MILLER & POULGRAIN [2004]

Couple owned separate interests in property.
Property transactions took place without the effect of the Matrimonial Property Act being explained.
Lawyer sued.
Issue: What would have happened had the clients been properly advised?


Would have still gone ahead if they had been give the advice.

OTHER TYPES OF DAMAGES

COOK v EVATT (NO. 2)

Evatt offered impartial financial advice but personally became interested in property investment.
Cook sought advice from Evatt.
Exemplary damges of $5000

BROAD DEFENCES APPORTIONMENT/CONTRIBUTORY NEGLIGENCE

HELSON v MCKENZIES LTD [1950]

Plaintiff left her handbag containing a large sum of money on the counter of the Defendant's shop.
Defendant's sales assistant without requiring proof of ownership handed it to an unknown person who claimed it.
Bag never recovered and Plaintiff sued the shop for conversion.
Held: Claim succeeded but damages reduced by ¾ for her contributory negligence.

WHEN WOULD THERE BE No contributory negligence ?

injured person acts reasonably, e.g. swerving to avoid stock negligently allowed to wander on to a road.

Sayers v Harlow Urban District Council

Defendant negligently caused the Plaintiff to be locked in a public lavatory.;
Plaintiff injured when she trod on the toilet roll holder while trying to climb out;
25% reduction in damages.

VOLUNTARY ASSUMPTION OF RISK

SMITH v BAKER [1891] (UK)

Property and Family

DE FACTO: relationship between two persons who are both 18 years or older, who live together as a couple, who are not married or in a civil union

SECTION 2D

SCRAGG V SCOTT

Guam case. Spent long periods away from New Zealand- purchased a property in 1996

CONTRACTING OUT

Section 21:persons in a relationship may enter into any agreement they think fit with respect to the status, ownership and division of their property

section 21F - in writing, signed by both parties, each party must have independent legal advice, signature must be witnessed, same solicitor to witness and provide advice.
Setting aside agreements - test is serious injustice.

TRANSFERRING ASSETS INTO TRUSTS-Section 44C - compensation available if relationship property is transferred to a trust defeating the claim of the other spouse.

CLAYTON DECISION

Mr Clayton held significant powers enabling him to control the trust.
Those powers were considered property and relationship property for the purposes of the Act.

NATION v NATION

Couple married in 1972, had 4 children and separated in 2000.
Couple on a farm and husband obtained ownership of the family farm during the marriage and then transferred the entire farm to a trust.
HELD:Transfer of relationship property to a trust putting the property beyond reach of the other spouse defeats the claim entitling the other spouse to compensation.

P v B

P and B in de facto relationship for over 6 years.
P signed up to buy a residential property but his trust completed the purchase and funded the purchase price.
House was family home.

Valuation- Section 2G - value to be determined as at the date of hearing or a different date, at the discretion of the Court.

Contributions/SHARES DETERMINED- Presumption is that relationship property will be divided equally.

Exceptions

Extraordinary circumstances- Section 13 - extraordinary circumstances that make equal sharing repugnant to justice.

Economic disparity exception

Relationship of short duration exception

Essentially shares are determined on the basis of contribution - refer to sections 14 and 14A.
De facto - the Court only has jurisdiction IF satisfied that:
There is a child of the relationship; OR
A substantial contribution has been made; AND
Failure to make an order would result in serious injustice.

McKenzie v Hoffman

Unsuccessful appeal by husband to the HC, against and FC decision where property divided 65/35 in his favour;
2 years;
Husband contributed funds for purchase of two homes, $135,400.00;
Wife contributed 2/3rds of family income from full time employment and the greatest contribution to care of children and domestic life.

DE MALMANCHE v DE MALMANCHE

KAUWHATA v KAUWHATA

Parties lived together in 1986 (husband 47, wife 26), married in 1988 and separated in 2000.
Husband owned the property, having purchased it in 1979.
Husband paid off the mortgage in 1987 with money from his mother. Husband also claimed to have spent $148,000 on improvements to provide

Parties married in 1984 (husband 22, wife 43) and separated in 1996.
Wife owned a property before the marriage which became the matrimonial home. She had 4 children from a previous marriage. They had 1 child between them.
Extraordinary circumstances. 65/35 to the wife.

UBELS v BARRETT

Wife in better financial position. Couple negotiates terms allowing wife to keep certain prop.


Husband agrees to sign but doesn't actually. Husbands contributes very little.

X v X

Couple both prize winning accountancy students at the University of Auckland where they met.
Married in 1982.
Moved to the United States where husband studied for an MBA at Harvard and wife offered places in MBA courses but declined.
Wife stopped work and children born in 1989 and 1992.

Agreement to resolve differences : Section 21A.
Formalities - section 21F - in writing, signed by both parties, each party must have independent legal advice, signature must be witnessed, same solicitor to witness and provide advice.
Setting aside agreements - test is serious injustice.

Insolvency

The Plaintiff was a Customs officer looking for somebody. He entered the warehouse and bags of sugar being lowered fell on him without warning.
HELD: There must normally be reasonable evidence of negligence.

A workman was employed to drill rock in a cutting. He knew that a crane carrying loads of stones constantly swung over his head and that there was a danger a stone might drop on him.