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Week 2 Duty of Care An obligation imposed on a person to take reasonable…

- - - - Question of law
  - - - standard of care
        
        question of law
      - breached in fact
  - - - Did the breach of duty cause the plaintiff’s loss/damage?)
    - - Has the plaintiff suffered a loss that is recognised by law because of the breach by the defendant?
        
        remoteness/scope of liability
        
        causation in law
        
        causation in fact
- - - - Edwards v Noble (1971) 125 CLR 296
      - Imbree v McNeilly [2008] HCA 40
  - - - • school authorities: Commonwealth v Introvigne (1982) 150 CLR 258
      - • prison authorities: Ralph v Strutton [1969] Qd R 348
      - • parents of young children: see, for example, McHale v Watson (1964) 111 CLR 384
  - - - • solicitors
      - • barristers
      - • medical professionals
- - - - Facts: Pl’s friend purchases for the Pl a bottle of ginger beer. After drinking some, Pl discovers remnants of snail and becomes violently ill. Pl has no remedy in contract as it was her friend who purchased the drink from the shop. Does Pl have a remedy in negligence against manufacturer? Yes.
        Legal principle: Potential Def’s, such as the manufacturer of the ginger beer, must have regard to those people, businesses and others who, in law, would be regarded as their ‘neighbours’: per Lord Atkin.
        Who are my neighbours in law?
        ‘persons so closely and directly affected by my acts’ – this is the idea of proximity.
        ‘I ought reasonably have them in contemplation as being affected’ – this is the idea of reasonable foreseeability.
        Problem: Where does the neighbour concept end? To how many cases can it be applied? Where are the outer limits? These questions continue to test the senior common law courts of both Australia and the UK (and elsewhere).
  - - - Reformulated Lord Atkin’s test by acknowledging the importance of judicial policy: Anns v London Borough of Merton [1978] AC 728
        
        existence of a duty of care depended on a two-stage test
        initially accepted by the Australian Courts in Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268
        
        was the harm reasonably foreseeable
        
        if it was, were there any policy grounds on which the law should negate, or limit, the scope of the duty?
    - - The use of proximity as a unifying principle in the recognition of a duty of care in novel situations was advocated by Deane J, with whom Gibbs CJ agreed, in the pure psychiatric injury case of Jaensch v Coffey (1984) 155 CLR 549
        
        acted as a limit on the reasonable foreseeability test
        
        once the reasonable foreseeability of the kind of harm requirement was satisfied, the proximity approach had two steps
        
        1) an assessment of the degree of closeness between the plaintiff and defendant (having regard to their physical, circumstantial and casual proximity); and then
        
        2) an evaluation of the legal consequences of that assessment.
      - Criticism
        
        simply providing a formula to express a result, rather than an explanation of how the steps led to the result.
        
        Since 1997, the High Court has moved away from this notion of proximity as a universal determinant of duty of care in difficult and novel situations.
    - - Caparo test is a three stage test identified by Lord Bridge in the English case of Caparo Industries v Dickman [1990] 2 AC 605
        
        ii) Is the relationship between the plaintiff and defendant sufficiently proximate to justify a duty of care?
        
        iii) Is it fair, just and reasonable to impose a duty of care in the circumstances?
        
        i) Was the harm a reasonably foreseeable result of the defendant’s action?
      - Criticism
        
        both the proximity and Caparo approaches were rejected by the High Court in Sullivan v Moody (2001) 207 CLR 562
    - - rejects the idea that there is a ‘unifying principle’ (such as proximity) for determining a duty of care.
        
        In novel cases then, similar cases or categories of cases are identified by analogy. As different principles and policy considerations apply to each category of case, the factors which were relevant in that category are then applied to the case in hand to answer the duty question.
      - Criticism
        
        that it is not always easy to find categories of case which are sufficiently analogous to novel cases, nor does it provide greater certainty than the other approaches
    - - salient features’ of a particular case, in addition to reasonable foreseeability, as playing a key role in determining whether a duty of care exists
        
        applied by the High Court;
        Hill v Van Erp (1997) 188 CLR 159
        Graham Barclay Oysters v Ryan (2002) 211 CLR 540
        factors considered relevant will vary with the particular case according to the nature of the case
        
        factors considered relevant will vary with the particular case according to the nature of the case
        
        two salient features identified by Gummow J in Perre v Apand (1999) 198 CLR 180
        
        Control
        
        Vulnerability
    - - The approach applied by the High Court in Sullivan v Moody (2001) 207 CLR 562 forms the basis of the current approach to novel duty cases in Australia.
        
        must be recognised as being compensable and an infringement of a legally recognised right.
        
        Harm must still be a reasonably foreseeable result of the defendant’s actions and consistent with the incremental approach, analogies must be drawn with an established category or categories of duty cases.
        
        judicial evaluation of the factors for and against the recognition of a duty of care in the case at hand. Factors include -
        
        Nature of rship between Pl & Def compared with other duty rships: Tame v NSW; Annetts v Aust Stations; Bryan v Maloney (1995) 182 CLR 609; Graham Barclay Oysters v Ryan (2002) 211 CLR 540.
        
        Factual context, inc. degree of control exercised by Def over situation: Woolcock St Investments; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Perre v Apand (1999) 198 CLR 180.
        
        Type of legally recognised right the Pl claims Def has infringed (eg. property or commercial rights): Woolcock St Investments v CDG Property (2004) 205 ALR 522; Harriton v Stephens (2006) 226 CLR 52.
        
        Vulnerability of the Pl and degree of self-protection: Hill v Van Erp (1997) 188 CLR 159; Gifford v Strang Patrick Stevedoring (2003) 198 ALR 100; Harriton v Stephens.
        
        Need to preserve coherency of law: Sullivan v Moody; Koehler v Cerebos; Graham Barclay Oysters v Ryan.
        
        Indeterminacy issues: Caltex Oil v The Dredge ‘Willemstad’; Harriton v Stephens; Leichardt Municipal Council v Montgomery; Brodie v Singleton Shire Council.
        
        Ethical and moral considerations: see Lord Atkin in Donoghue v Stevenson; Kirby J in Cole v Sth Tweed Heads Rugby League Football Club.
        
        approach requires the specific problems associated with the established category of duty cases (with which the analogy has been made) to be identified
  - - - majority of the High Court do not consider that overt consideration of policy factors forms part of the test for duty of care, and that the Court prefers recourse to what it considers matters of legal principle (Sullivan v Moody). However, despite that, policy factors still feature clearly in determinations of duty of care (see, for eg Cattanach v Melchior (2003) 199 ALR 131)