Tort Law- NegligenceChapter 8.1

Tort LawThe law of torts deals with a range of conduct that causes injury to a person by breaching a legally recognised right and gives that person a remedy, such as payment of compensation. However, the defendant may be able to avoid or lessen liability by the use of a legally recognised defence.

Key Knowledge

Is there negligence in the following examples?

1. Tanner is texting while driving and his car hits Alexandra, who is riding her bike. Alexandra's arm is broken.

2. Gary opens up his newly renovated shop and Reece is one of the first customers through the door. Reece is injured when he is pushed by the crowd into the edge of a shelf.

3. Sophia needs a heart transplant. Her doctor does not tell her that there is a 1 per cent risk of severe permanent brain damage. An operation does result in severe brain damage.

4. Jasmine cuts her finger in the classroom and her teacher is distracted while she attempts to comfort her. Marcus leaves the room and finds a gate open. He walks out of the primary school and onto the road, where a car swerves to avoid him and hits a pole. The driver dies.

Negligence

Negligence is the most common and important type of tort law heard by our courts. It is concerned with whether or not a person's conduct has been so careless or faulty that he or she should be liable to injured parties for acts or omissions (failure to act).

Elements of negligence

To succeed in court action the plaintiff must prove, on the balance of probabilities, each of the following three elements:1. the defendant owed a duty of care2. the defendant breached the duty of care3. the action of the defendant caused the injury4. the plaintiff suffered loss as a consequence.

Duty of care

When does one person owe another person a duty of care? This question was considered in the English case Donoghue v. Stevenson [1932] AC 562, which provides the foundation for the modern law of negligence.

The snail in the bottle case — Donoghue v. Stevenson• In August 1928, May Donoghue and a friend went to a café where the friend

purchased a bottle of ginger beer for Donoghue to drink. The drink was in an opaque glass bottle, so it was impossible to see the contents of the bottle from the outside. Some of the ginger beer was poured over ice-cream and Donoghue consumed it. When the rest of the drink was poured, the decomposed remains of a dead snail slipped out. As a result Ms Donoghue suffered from severe gastroenteritis and shock.• Ms Donoghue wanted to sue Stevenson, the manufacturer of the soft drink but,

at the time of the appeal court hearing (1932), an injured party could only sue if party to a contract. If Donoghue had been the person who actually purchased the drink, she could have sued in contract law. But, as her friend purchased the drink, Donoghue could not rely on contract law to recover damages.

Despite these legal difficulties, Donoghue took the radical step of suing Stevenson. The question for the court was whether or not there were any legal grounds upon which Stevenson could be held responsible for the injuries to Donoghue. The case went on appeal to the highest court in England, the House of Lords. In a 3–2 decision the court determined that a manufacturer could be liable for damage caused to the end-users of its products, even though the injured person was not a party to a contract.

• This case set a famous precedent• Prior to this case the notion of being negligent

did not exist• The ratio decidendi in this case provided the

guiding principles for the law of negligence• This case was heard in England and decided by

The House of Lords

Would you agree with the following?• Schools owe a duty of care to their students and must take

reasonable measures to prevent foreseeable risks of injury to students. • This includes taking steps to address bullying behaviour once

identified. In 2008, a 30-year-old man brought a case against the New South Wales Education Department, claiming he suffered six years of humiliation and isolation at Tamworth High School while nothing was done, despite repeated complaints. • The psychological damage done affected the man's ability to work. He

was awarded $470 000 in compensation. (Gregory v. State of New South Wales [2009] NSWC 559)

Think….

List five examples where a school could breach its duty of care of a student.

Medical Negligence

• http://www.jacplus.com.au/secure/Searchlight?searchbox=eles-0748

• Since 1932, when Donoghue v. Stevenson was decided, the courts have gradually extended the situations where a duty of care is owed to include students, other road users, employees, transport passengers and clients of professionals such as solicitors.

• The legal reason for the court's decision in Donoghue v. Stevenson (the ratio decidendi) was that a person who manufactures products that cannot be inspected prior to use, owes a duty of care to consumers of the product. One of the judges in the case, Lord Atkin, made a famous statement that is now known as the neighbour principle. In essence, Atkin stated that:

• you must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour

• your neighbour is any person who is closely affected by what you do or fail to do.• Thus, according to the neighbour principle, a duty of care is owed when a reasonable

person could foresee that damage may occur as a consequence of the defendant's actions.

A bad itch — Grant v. Australian Knitting Mills (1936) AC 85• In 1931, Dr Grant purchased two singlets and two pairs of woollen underpants

that were manufactured by Australian Knitting Mills (AKM). • Without first washing the garments, Grant wore one pair for a week. He

developed itchy patches on both his shins which he treated with calamine lotion. • The next week he wore the second singlet and underpants for a week. The skin

irritation developed into acute dermatitis and he was bed-ridden for 17 weeks. • In an action against AKM, he alleged the underwear contained a hidden defect,

a chemical residue, which caused the dermatitis. • The precedent established in Donoghue v. Stevenson was followed and the

court found that AKM had a duty of care to the wearers of its garments.

Breach of the duty of careOnce the plaintiff has established that the defendant owed a duty of care, the next step is to prove that the duty was breached. This requires the plaintiff to prove:• that the risk of injury was foreseeable• that the defendant failed to exercise a reasonable standard of care in the circumstances.• In Deciding whether the risk of injury was foreseeable and how much care should have been

taken in the circumstances is not always straight forward. • In measuring the standard of care owed in the particular circumstances, courts consider a

number of factors including:• the likelihood of injury. Was the risk of injury to the plaintiff reasonably foreseeable? If risk of

injury is so remote that a reasonable person would ignore it, then the defendant may be justified in disregarding it.

• the seriousness of injury. If the potential risk is great, the defendant should take greater precautions.

• the effort and cost involved to address the risk. A defendant may be justified in not taking steps to address a risk if it is not economically justifiable.

Loss suffered

• Even if the duty of care owed was breached, unless the plaintiff actually suffered injury, he or she will not succeed in a negligence claim.

• The plaintiff must show injury or loss and that it was directly caused by the defendant's failure to exercise adequate care.

• It is not always easy to show the exact cause of an injury, as there is often more than one cause.

• In more difficult cases where causation is not clear, courts ask whether the plaintiff would have been injured ‘but for’ the defendant's conduct. In March v. Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, the defendant parked his truck in the middle of a four-lane road in Adelaide, at night, to unload goods. The plaintiff, who was very drunk, was injured when he drove his vehicle into the truck. Even though the plaintiff was drunk, the High Court found that ‘but for’ the truck driver negligently parking in the middle of the road, the accident probably would not have happened.

Your turn..

Complete;Test your understanding questions 1-3Apply your understanding questions 4-5

Case study;Complete the Venice Kowalcyzk case (Q drive)