Law of Negligence: 1st and 2nd essentials of Negligence Essay

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Law of Negligence: 1st and 2nd essentials of Negligence

INTRODUCTION

Negligence is a part of that branch of Civil Law known as Tort Law. Hence, negligence is a tort. Other torts include nuisance, trespass (to person or goods or land), deceit, passing off, defamation and so on. This lecture will examine the tort of negligence, and will focus on the first two ‘essentials’ needed to prove an actionable case. Lecture 4 will consider the third essential, defences and remedies in Negligence.

On successful completion of this lecture, you should (within the scope of the course) be able to: * define the meaning of tort
* define negligence
* identify and describe the three essentials needed to establish a case in negligence * describe and discuss the legal principles used to establish duty of care for negligent actions * describe and discuss the legal principles used to establish duty of care for negligent advice * identify the attributes of the hypothetical ‘reasonable person’ * identify and describe the guidelines used to establish breach in the standard of care

TORT
A tort is defined as a civil wrong (other than a breach of contract) in the form of a breach of duty for which the legal remedy is an award of damages. Tort Law is quite distinct from the Law of Contract. Pentony, Graw, Lennard and Parker (2003, p.367) puts the difference this way:

“The main difference between tort and contract is that the law of contract essentially deals with the enforcement of rights that the parties have created for themselves through their agreement while the law of torts deals with the enforcement of rights that have been conferred by law – irrespective of agreement.”

A tort will impose a duty of some kind on a person or persons in certain circumstances, and its breach can entitle the plaintiff to damages as compensation for the loss or injury suffered. The rights that the tort law protects include the rights of individuals not to have their property, reputation, person or certain interests injured.

NEGLIGENCE
As noted above, Negligence is but one of a number of torts, albeit the most important one. Negligence is the doing of something which a reasonable person would not do or the failure to do something that a reasonable person would do, which inadvertently inflicts harm. That is, the plaintiff does not have to prove that the defendant either intended his act or its consequences. However, negligence involves more than just careless conduct, and involves a combination of the concepts of duty, breach and sufficient connection in law.

Accordingly, there are 3 essentials which the plaintiff must prove ‘on the balance of probabilities’ in order to succeed in an action in negligence: 1. the defendant owed the plaintiff a duty of care;

2. the defendant failed to conform to the required standard of care; and 3. there was a sufficient connection in law between the defendant’s conduct and the damage (i.e. loss or injury) suffered by the plaintiff (note: the 3rd essential is often discussed in the literature under the heading of ‘damage’ instead of ‘sufficient connection in law” (for example, the Understanding Business Law text at page 718). There is little practical difference between the two terms for our purposes, and the essentials as listed above will be used in our discussions.

The Law of Negligence has evolved dramatically during the twentieth century. Donoghue v. Stevenson [1932] AC 562 was a landmark case which laid down the test for duty of care and held that a manufacturer was liable to the ultimate consumer for any damage or injury arising from the consumption or use of goods which were faulty because of the manufacturer’s negligent act. A further watershed in negligence law in Australia came with Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225, where the court held that those who give gratuitous advice could be held liable for any
damage if the advice was negligent. *

* DUTY OF CARE
The Defendant must owe the Plaintiff a duty of care, which the Plaintiff must prove on the balance of probabilities. If no duty of care is owed, the Plaintiff’s claim must fail. The judge at the trial has the responsibility for deciding whether or not a duty of care exists as the issue is a question of law having regard to the facts of the case. The method used to test the existence of a duty of care will differ depending on whether the action involves negligent advice or a negligent act. The test for duty of care in negligent acts is now relatively complicated, although it evolved from the relatively straightforward test from Donoghue v. Stevenson [1932] AC 562 which was based on whether or not the injury was reasonably foreseeable, and the closeness or proximity of the plaintiff to the defendant.

On the other hand, the test for duty of care in negligent advice developed from Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225 and is based on whether or not the advice was for a serious matter which the adviser is expected to give his or her best advice and it was reasonable that the recipient act on the advice. *

* Duty of Care for Negligent Acts *
* Historical background: Doctrine of Reasonable Foreseeability and Proximity The historic test for establishing the existence of a duty of care in actions involving negligent acts was laid down by the House of Lords decision in Donoghue v. Stevenson [1932] AC 562. In that decision, the twin duty of care elements of ‘reasonable foreseeability’ and ‘proximity’ were stated in the ‘neighbour test’ by Lord Atkin: *

* The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. 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 my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question. *

* Hence, for Lord Atkin’s neighbour test, two issues needed to be satisfied: reasonable foreseeability and proximity. For reasonable foreseeability, the question was – would a reasonable person, in the position of the Defendant, have foreseen the likelihood of injury to the Plaintiff arising out of the Defendant’s behaviour? For proximity, the question can be posed thus – was the proximity (closeness) of the injured Plaintiff such that the Defendant ought to have had him/her in mind when doing the alleged negligent act?

The test of reasonable foreseeability is an objective one: that is, what would a reasonable person have foreseen, rather than what the Defendant actually foresaw at the time. Further, it is not necessary that the exact nature of the loss or injury been foreseen, just the likelihood of injury of the same general character as that suffered. Both aspects do not require the Defendant to be actually aware of or know the Plaintiff as an individual – it is sufficient that the plaintiff belong to a class of persons of whom the Defendant ought to have been aware when doing the alleged negligent act. *

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Case Summary reading – Understanding Business Law (2008) text, page 695/696 ————————————————-
Donoghue v. Stevenson [1932] AC 562
*
* Contemporary situation * From a number of decisions in the 1990s, the High Court moved decidedly away from a ‘one-best’ approach for duty of care for negligent actions and opted for a ‘broad approach’. In particular, the High Court expressed dissatisfaction with ‘proximity’ – “proximity is no longer accepted as the defining test [authors’ italics] to establish whether there is a ‘duty of care’ in any particular case” (Pentony, Graw, Lennard and Parker, 2008, p. 698). As the Understanding Business Law text (at page 698) notes, the following pattern appears to best represent current High Court thinking in the establishment of a duty of care: *

* 1. Determine whether or not a reasonably foreseeable risk of injury existed; without reasonable foreseeability, no duty of care can exist. In some cases (especially those involving direct physical harm from the negligent action), reasonable foreseeability may be adequate in establishing a duty of care by itself. *

* 2. Determine whether or not the present case is analogous to cases in which a duty of care has already been established (or is in a category in which a duty of care has been held not to exist). For example, employers are under a general duty of care, which cannot be delegated to others, to provide a safe system of work for their employees. The driver of a motor vehicle owes a duty of care to pedestrians, other road users and adjacent property owners. Other relationships which may give rise to a duty of care include: professionals to clients, schools to students and manufacturers to consumers. *

* 3. If the case does not fall into an established category, the Court may look at the important features of the case to establish whether a sufficiently close ‘neighbourhood’ relationship exists to justify a duty of care. In establishing this, the courts can consider the plaintiff’s vulnerability in the matter, along with their reliance on the wrongdoer, the wrongdoer’s assumption of responsibility (if any) and the wrongdoer’s level of control in their actions. *

* 4. Determine whether or not ‘policy’ considerations exist which may work against the finding of a duty of care in such circumstances, especially where a defendant might otherwise be subjected to liability of an indeterminate extent; such considerations “allow the courts to weigh competing considerations of legal policy to determine whether, despite proof of foreseeability and neighbourhood, a duty should not be imposed” (Pentony, Graw, Lennard and Parker, 2003, p. 374). *

* ————————————————- Specific reading from the Understanding Business Law (2008) text * ————————————————- Chapter 22, section 22.22 through 22.29 discusses the contemporary approach in detail. *

* Once the facts of the case support the finding that the Defendant owed the Plaintiff a duty of care when doing the alleged negligent act, it does not automatically lead to an award of damages, as the plaintiff must still prove the other essentials: *

(i) the defendant was in breach of the Standard of Care (refer 2nd Essential below) (ii) there was a Sufficient Connection in Law (refer 3rd Essential, Lecture 4)

Duty of Care for Negligent Advice
There are clear differences between negligent words and negligent acts. According to Chief Justice Gibbs in Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225, there are three key points of departure, summarized as follows. First, negligent words cannot cause loss by themselves – they cause loss only because persons act on them in reliance. Second, it is not uncommon for people in social or informal contexts to make statements less carefully than if they were giving advice in business or professionally. Last, words may foreseeability receive such a coverage or circulation that the application of Donoghue v. Stevenson (i.e. neighbourhood) might lead to many claims for large amounts of damages. Accordingly, the High Court in Shaddock developed the following test involving the following three questions, all of which must be answered in the affirmative for a duty of care to exist:

1. Was the advice given on a serious matter?
2. Did the speaker realise, or ought he to have realised, that his advice would be acted upon? 2. Was it reasonable for the recipient to act on the advice?

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Case Summary reading – Understanding Business Law (2008) text, pages 729-730 ————————————————-
Shaddock and Associates v. Parramatta City Council (1981) 150 CLR 225

Once the facts of the case support the Shaddock tests, it can be concluded that the adviser owed the plaintiff a duty of care. However, such a finding does not automatically lead to an award of damages, as the plaintiff must still prove the other essentials:

(i) the defendant was in breach of the Standard of Care (refer 2nd Essential below) (ii) there was a Sufficient Connection in Law (refer 3rd Essential, Lecture 4).

* BREACH OF STANDARD OF CARE

Given that a duty of care is owed, then how much care has to be exercised? The defendant has to take reasonable care, that is, to act as a reasonable person would have in the circumstances. The ‘reasonable person’ is not a real person – merely a hypothetical benchmark or device used by the courts, and is deemed to have the following attributes:

1. Intelligence
There is a presumption of average intelligence. If a defendant has above average intelligence, this person is not judged according to above average intelligence. On the other hand, if a person has below average intelligence, this person is judged according to the same standard – the standard for a person of average intelligence.

2. Knowledge and Skill
There is a presumption of a certain level of knowledge and skill that can reasonably be expected of persons in the position, trade, qualifications or profession of the defendant. The defendant’s actual knowledge and skill are generally irrelevant, as the presumed amount depends on the qualifications the person possesses. For example, drivers must have the skill of a competent driver, and people in a trade, profession or business are measured by standards of knowledge and skill which one can reasonably expect in the trade, profession or business. These standards are set by objectively analysed community standards and not the prevailing standards of the particular profession which may have lagged behind perceived community standards.

If a person holds out that they have special knowledge or skill not normally associated with the trade, business or profession, then that person will be judged on the basis that he does have these superior standards. However, if people who have additional expertise do not hold themselves out as having such additional expertise, then they will only be judged by the standards applicable to the trade, business or profession they are practising. There are some exceptions, including minors, who are judged against normal children of the same age. *

* Guidelines as to Breach of Standard of Care The Courts have developed various guidelines which may be relevant and useful in determining a breach in the standard of care in the circumstances:

* The Probability of Harm
* The Seriousness of Possible Injury
* The Costs and Opportunities of reducing or avoiding the risk * The
Value of the Defendant’s Conduct
* Conformity with Established Standards
*
* The Probability of Harm

The guideline establishes that the greater the probability of harm, the greater the amount of care which has to be taken. That is, the greater the risk of some kind of harmful injury or loss occurring in the circumstances, the greater the standard of care that would be shown by a reasonable person in their actions and consequently, the greater the probability of a breach if such reasonable care is not exercised. *

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Case Summary reading – Understanding Business Law (2008) text, page 709 ————————————————-
Bolton v Stone [1951] AC 850
*
* The Seriousness of Possible Injury

The guideline establishes that the more serious the possible consequences of injury, the greater the degree of care which has to be shown. That is, the greater the likelihood that some serious injury will arise in the circumstances, the greater the standard of care that would be shown by a reasonable person in their actions and consequently, the greater the probability of a breach if such reasonable care is not exercised. *

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Case Summary reading – Understanding Business Law (2008) text, page 708 ————————————————-
Paris v Stepney Borough Council [1951] AC 367
*
* The Cost and Opportunities of Reducing/Avoiding the Risk

The guideline establishes that when cost and difficulty of avoiding risk is great and the actual risk is small, then there is less likelihood of a breach, and vice versa. That is, if the cost and difficulty of avoiding the risk is small and the actual risk is great, then there is a greater likelihood of a breach if remedial action is not taken.

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Case Summary reading – Understanding Business Law (2003) text, page 381 ————————————————-
Latimer v AEC Ltd [1953] AC 643 (section 16.40)
*
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Case Summary reading – Understanding Business Law (2008) text, page 712 ————————————————-
Haley v London Electricity Board [1965] AC 778
*
* The Value of the Defendant’s Conduct

The guideline establishes that the less the social or economic value of the defendant’s conduct the greater the likelihood of a breach in the standard of care and vice versa. This of course does not mean that providers of essential services can be careless. The guideline arguably imposes a public policy dimension on the standard of care issue.

* Conformity with established standards
Conformity with established standards in any trade or profession is important evidence that reasonable care exercised, and vice versa.

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Case Summary reading – Understanding Business Law (2008) text, page 714 ————————————————-
Derrick v Cheung (2001) 181 ALR 301

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Case Summary reading – Understanding Business Law (2008) text, page 715 (section 22.46) Mercer v Commissioner for Road Transport and Tramways (NSW) (1937) 56 CLR 580

The standard of care is set by reference to objectively assessed community values. Indeed, just because a defendant follows common practice does not necessarily show that he is not negligent as a common practice may be shown by evidence to be itself negligent. *

* ————————————————- Reading for this lecture from the Understanding Business Law text * ————————————————- Read Chapter 22, sections 22.1 through 22.47.; sections 22.67 through 22.74 *

*
*
Self test exercises – Lecture 3
Multiple choice questions

1. Which of the following is true of torts?
a) includes any civil wrong
b) has an award of damages as the legal remedy
c) does include breaches of contract
d) all of the above
e) both (b) and (c) above

2. Which of the following is not relevant in establishing Negligence? a) there was a contractual agreement between the plaintiff and the defendant
b) the defendant failed to show the required standard of care
c) the defendant owed the plaintiff a duty of care
d) the defendant intended to harm the plaintiff
e) both (a) and (d) above

3. The twin tests of reasonable foreseeability and proximity have historically been used to establish a) whether or not a breach in the required extent of care has arisen b) a duty of care for negligent actions

c) that the damage suffered by the plaintiff was not too remote d) the defendant’s liability for damages in tort generally e) none of the above

4. Which of the following is relevant to the contemporary approach to establishing a Duty of Care for negligent conduct? a) determine whether or not a reasonably foreseeable risk of injury existed b) determine whether or not the case before the court is analogous to previous cases in which a duty of care has been found to exist c) determine whether a sufficiently close ‘neighbourhood’ relationship exists to justify a duty of care d) determine whether or not policy considerations exist which may work against the finding of a duty of care e) all of the above

5. In which of the following is Donoghue v Stevenson [1932] most associated in this unit? a) value of the defendant’s conduct
b) remoteness of loss
c) causation
d) duty of care for negligent acts
e) contributory negligence

6. Under the contemporary approach to establishing a Duty of Care, which of the following relationships would likely give rise to a duty of care? a) Alan, an employer and Bob, an employee of Alan

b) Echo, a driver of a motor vehicle, and Foxtrot, another road user c) Alpha, a doctor, and Bravo, his patient
d) Maker, a manufacturer, and User, a consumer of his products e) all of the above

7. Which of the following is a requirement for establishing duty of care in negligent advice from Shaddock v Parramatta City Council (1981)? a) the
advice must be true and correct
b) it was reasonable for the recipient to act on the advice b) the speaker realised or should have realised that the recipient would act on the advice c) the recipient paid for the advice

e) both (b) and (c)

8. In relation to an action in Negligence, how much care must the defendant have shown in the circumstances to avoid breaching the required standard of care? a) the amount of care a reasonable person would have shown

b) the amount of care the plaintiff would himself have shown c) the amount of care the defendant actually showed
d) the amount of care an ordinary person standing nearby would have shown e) the amount of care a lawyer would have shown in the circumstances

9. In which of the following is Haley v London Electricity Board [1965] most associated in this unit? a) probability of harm
b) seriousness of possible injury
c) costs and opportunities of avoiding the risk
d) value of the defendant’s conduct
e) conformity with established standards

10. In which of the following is Paris v Stepney Borough Council [1951] most associated in this unit? a) probability of harm
b) seriousness of possible injury
c) costs and opportunities of avoiding the risk
d) value of the defendant’s conduct
e) conformity with established standards

11. In which of the following is Derrick v Cheung (2001) most associated in this unit? a) probability of harm
b) seriousness of possible injury
c) costs and opportunities of avoiding the risk
d) value of the defendant’s conduct
e) conformity with established standards

12. In which of the following is Bolton v Stone [1951] most associated in this unit? a) probability of harm
b) seriousness of possible injury
c) costs and opportunities of avoiding the risk
d) value of the defendant’s conduct
e) conformity with established standards

*
*
*
* Short Answer Questions *
* Question 1
In a negligence case, name and describe one (1) guideline which the court may use to determine whether the required standard of care has been met.

Question 2
Briefly explain the significance of the decision in Donoghue v. Stevenson.

Question 3
In the tort of negligent advice, how does the law determine whether the defendant owed the plaintiff a duty of care?

Question 4
Who or what is a ‘reasonable person’?

LAW1100D
TUTORIAL 3
Question 1
The WA Parliament passes legislation and an industry body is concerned about the interpretation and application of a particular section which states:

“no person shall sell or offer to sell an offensive weapon in a shop.”

Unfortunately, there is no definition of the term ‘offensive weapon’ in the legislation. The industry body’s concern about the possible application of the Act to four of its members (a supermarket, a hobby shop, a coffee shop proprietor and an antiques shop owner) centres around four possible scenarios:

(i) Would the section apply to a supermarket which gives away a free steak knife for every purchase of goods over $100? (ii) Would the section apply to a hobby shop which sells a plastic toy gun for $20 to a customer? (iii) Would the section apply to a coffee shop in which a customer drinking coffee at a table also sells a flick-knife for $15 to another customer? (iv) Would the section apply to an antique shop which sells a Napoleonic cavalry sword to a collector for $25,000?

What is the likely interpretation of the statute for each of these scenarios? Use the rules of statutory interpretation to support your answer.

Question 2
A section of an Act provides as follows:
“Where a mortgagee sells land to recover the amount of a loan advanced on the security of the land and the sale of the land provides more than the balance of the mortgage, the balance after sale shall go to the person entitled to the property.”

Mark mortgaged his land to ABC Bank in return for a loan of $200,000. Mark is unable to repay the loan, and the ABC Bank (which was given the power of sale by the mortgage document) sold the land to Fred for $250,000. Using the rules of statutory interpretation, which party gets the balance of $50,000 – is it ABC Bank, Mark or Fred?

Question 3
“We are told that law is a set of rules that is ultimately enforced in the Courts. One source of law is statute law. To enforce a rule in a statute, the meaning of it must be understood. To understand the meaning, the words of the rule must be interpreted. If we are to have confidence in the law, this interpretation must be consistent case after case.”

Reflect on the above statement, and then describe the aids to interpretation provided by the Parliament and the common law statutory interpretation rules used by the Courts. In your answer, discuss whether or not you think these aids to interpretation and rules are sufficient to ensure the consistent interpretation of statutes.

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