NEGLIGENCE

 The def owes the pl a duty of care

 The def breached that duty of care by not complying with the required standard of
care
 The def’s negligent behaviour caused the damage to the pl
 The damage caused is not too remote

DUTY OF CARE

Duty in Law
 Donoghue v Stevenson
 Duty of care exists if:
 It is reasonably foreseeable that the pl’s act will harm someone like the def
 The def is so closely & directly affected by the pl’s act that the pl ought to
have them in mind
 Duty of care exists in this case because:
 The bottle was released in the way that the manufacturer intended, with no
opportunity to inspect the bottle’s contents by anyone  def knew that the
absence of his reasonable care will result in injury to the consumer 
sufficiently close & direct relationship
 Jaensch v Coffey
 Deane J: In cases of ordinary personal injury, reasonable foreseeability of
harm to the pl is the only criterion of duty of care
 There may be special proximity considerations in cases where the pl is
complaining of:
 Psychological harm
 The def’s failure to take positive steps to prevent injury to the pl
 Perre v Apand
 McHugh J: In cases involving personal injury or damage to tangible property,
reasonable foresight of harm is enough to impose a duty of care on the def

Duty on the Facts

 Chapman v Hearse
 A def only needs to reasonably foresee injury to a class of persons that
includes the pl
 It is unnecessary to show reasonable foreseeability of the precise sequence of
events that led to the injury
 Dixon CJ: Any event that happens is foreseeable by a person of sufficient
imagination and intelligence
 A person whose negligence imperils other people or themselves ought
reasonably to foresee that other people will endanger themselves to rescue
them
 Nagle v Rottnest Island Authority
 A foreseeable risk of injury is a risk of injury that is not far-fetched or fanciful
 It was foolhardy and unlikely for a person to dive as the pl did, but reasonable
foreseeability includes the unlikely (it is enough that the risk is not far-fetched
or fanciful)
 (A reasonable person in the def’s situation would have guarded against the
foreseeable risk of injury which existed, by displaying a warning sign)
 Palsgraf v Long Island Railway Co
 Not reasonably foreseeable that the dropping of a parcel of newspapers can
cause harm to someone on the other side of the platform

STANDARD OF CARE

 Wyong Council v Shirt (balancing process:  risk,  cost)

 (A risk which is not far-fetched or fanciful is real and therefore foreseeable)
 (Local council ought reasonable to foresee people being misled about the sign)
 Elements determining whether the standard of care has been breached:
 Magnitude of risk
 Probability of its occurrence
 Expense/difficulty/inconvenience of precautions available to the def
Breach of duty is a question of balancing these factors
 Even small risks have to be accounted for
 The Wagon Mound No. 2
 If a real risk would occur to the mind of a reasonable person in the position of
the def, and which he would not brush aside as far-fetched, then he would not
neglect such a risk if action to eliminate it presented no difficulty,
disadvantage or expense
 Romeo v Conservation Council of the NT (balancing process:  risk,  cost)
 Used same principles as Wyong Council v Shirt & Nagle v Rottnest Island
Authority
 (The risk of someone faling off the cliff is not far-fetched and fanciful 
reasonably foreseeable risk  def owes a duty of care to persons entering the
reserve)
 On balance, the taking of necessary precautions (fencing off the cliff) is too
costly for the small risk
 (The pl knew of the danger presented by the cliff and failed to exercise
ordinary care for her own safety  contributory negligence)
 Kirby J: the resources of the def can be taken into account if determining
negligence in failing to take positive action
 Bolton v Stone (balancing process:  risk,  cost)
 Only precaution to prevent the pl’s injury was to stop playing cricket  too
big a cost in proportion to the risk involved  def did not breach duty of care
 (The possibility of the ball being struck out of ground and hitting someone is
so small & remote that a reasonable person would reject it as unworthy of
consideration)
 Battersby v Tottman
 The alleged precaution may be more dangerous to the pl than the course of
action actually taken  def not negligent
 Roe v Ministry of Health
 Standard of care is fixed according to what is known at the date of the conduct
that caused the pl’s injury (not according to later discoveries)
 Watt v Hertfordshire County Council (justifiability of  risk)
 If the taking of an additional risk is necessary to fulfil a socially useful
objective, and that benefit to others outweighs the additional risk to the pl,
then the def is not negligent
 However, special care is required of the person taking the additional risks (eg.
Blight v Warman)
 McHale v Watson (children)
 Standard of care of a child is the standard of any ordinary child of the same
age
 Adamson v Motor Vehicles Trust (mentally ill)
 To be negligent, the mentally ill def needs to know what he was doing (eg.
driving a car) but does not need to know that his act was wrongful
 Physically disabled
 The disabled are not expected to have the same standard of care (with respect
to their disability) as the non-disabled, but are expected to act carefully within
their physical limitations
 Mansfield v Weetabix Ltd (sudden incapacity)
 If there is no prior warning [or no reasonable method of guarding against the
emergency], then there is no breach of the standard of care
 Roberts v Ramsbottom (sudden incapacity)
 A def who is aware that there is something wrong with them is negligent in
driving, even if the nature of the incapacity prevents them from making the
reasonable judgement to stop driving
 Rogers v Whitaker (professionals)
 Standard of care of a professional is the standard of any ordinary skilled
practitioner, exercising or professing to have that special skill
 The court determines the standard of care of a doctor
 Factors that influence what the doctor should tell the patient:
 Patient’s showing of concern over the risk
 Materiality (significance) of the risk
 Danger to the patient of disclosing the risk (eg. Battersby v Tottman)
 In practice,
 Medical profession’s view of the standard of care is relevant in areas of
examination, diagnosis and treatment (supported by Lownds v Woods)
 Court should only determine the standard of care in the provision of
information to patients
 Cook v Cook (consensual relationships)
 ‘Special & exceptional’ circumstances
 reduce the standard of care, and
 arise if they alter the ordinary relationship between the pl & def such that it
would become plainly unreasonable for the usual standard of care to apply
 If a passenger knows of the driver’s inexperience & lack of licence, yet insists
the driver to drive, then ‘special & exceptional’ circumstances arise
 The standard of care required of the def is reduced (from the usual standard of
an alert & defensive driver) to the standard of an inexperienced & unqualified
driver
 Def was negligent because a reasonably inexperienced driver would not have
deliberately accelerated
 [If a person accepts a lift from a (known) drunk driver, ‘special & exceptional’
circumstances do not arise (s35a(4) Wrongs Act) but a contributory negligence
defence is allowed]
 [The court only allows this exception in very rare & unusual cases]

REMOTENESS OF DAMAGE

Was the damage within the risk which the def should have guarded against?
 The Wagon Mound No. 1
 The def is liable for damage of a kind that a reasonable man should have
foreseen
 Chapman v Hearse & Nagle v Rottnest Island Authority
 Versic v Connors
 It is unnecessary for the def to foresee the precise way in which the pl will be
hurt
 Hughes v Lord Advocate
 The def is liable if:
 The damage is of a kind reasonably foreseeable AND does not involve the
intrusion of a new & unexpected factor
 The actual risk was a mere variant of the foreseeable risk
 The (unforeseeable) risk of burning due to ignition of paraffin vapour was a
mere variant of the (foreseeable) risk of burning due to ignition of liquid
paraffin
 Irrelevant that the damage was more severe than foreseeable
 Doughty v Turner Manufacturing Co.
 The actual way in which the harm occurs, if unforeseeable, must not be too
dissimilar to that which is foreseeable
 The (unforeseeable) risk of eruption due to chemical reactions underneath the
liquid surface was [completely different from / not a variant of] the
(foreseeable) risk of splashing due to displacement
 The chemical reaction causing the eruption is an intrusion of a new and
unexpected factor which made the actual damage very different from the
foreseeable
 (Even if the dropping of the board is a negligent act, the pl was not harmed by
the splashing AND since the eruption is not a mere variant of the splashing,
the consequences of the breach were over by the time of the eruption  def
not liable)
 Stephenson v Waite Tileman Ltd.
 A def liable for the initial physical injury is liable for any further injuries
flowing from:
 New risks created by the initial injury, or
 A pre-existing special susceptibility of the pl to the initial injury
 The question of foreseeability should be limited to the initial injury
 The def takes the pl as he found him

CAUSATION

 March v Stramare
 Not all the conditions which must exist for the harm to occur are legal causes
of the harm
 ‘But for’ test must be qualified with common sense and value judgement to
determine legal causes
 Coincidental cause: A factor which places the pl at a place and time where he
was injured is not causally connected with the injury, unless the risk of injury
occurring was greater at that time
  Intervention: The act of a third party or pl will not relieve the def of
responsibility if the harm that comes about is the very kind likely to happen as
a result of the def’s negligence
 McGhee v National Coal Board
 If the harm suffered was of the kind that reasonable care was intended to
prevent, the def’s negligence is presumed to be the cause of the harm
 Performance Cars v Abraham
 The def is only liable for the damage that makes the pl worse off
 The def did not cause the necessity for respraying because that necessity
already existed
 Baker v Willoughby
 The first tortfeasor cannot reduce damages he must pay by relying on the
occurrence of a successive second tort
 When there are two successive torts, the first tortfeasor remains liable on a
continuing basis and the second tortfeasor is liable for the additional damage
he caused
 The pl is compensated for the loss which he suffers as a result of the injury 
the pl is compensated for lost earnings, lost ability to enjoy amenities, pain etc,
NOT for a disabled leg
 The second injury did not diminish any of the pl’s losses  consequences of
the first tort remained  second tort did not obliterate or supersede the losses
caused by the first tort  first tortfeasor continues to be liable
 Jobling v Associated Dairies
 When there are two successive independent events and the second event is an
incapacitating illness, the def is only liable for lost earnings etc up to the time
of the illness
 If a vicissitude has occurred by the time of the trial, it must be taken into
account and deducted accordingly from the award of damages
 Malec v Hutton
 In assessing damages which depend on future or potential events, the award of
damages is adjusted to reflect the degree of probability of that event occurring
 Even though it is likely that the pl might suffer from a disabling illness in the
future, he is still entitled to the chance that it would not occur
 This principle only applies where:
 The def has positively caused the injury, and
 Damages have to take into account some unrelated event that might limit
the loss
 Mallett v McMonagle
 In determining what did happen in the past, a court decides on the balance of
probabilities
 In assessing damages which depend on future or potential events, the award of
damages is adjusted to reflect the degree of probability of that event occurring
 Proof of causation & past damages require at least 50% of occurrence, but
proof of future & potential damages do not require at least 50% of occurrence
 Chappel v Hart (coincidental cause)
 If the pl is at some other place or time because of the def’s negligence and he
suffers injury, no causal connection exists unless the change of time or place
increased the risk of injury
 If the def had not breached the standard of care, the pl would had gone to the
best surgeon who possesses greater skill & experience  degree of risk would
 be diminished   the def materially contributed to the injury  not a mere
coincidental cause
 Medlin v SGIC (intervening act of the pl)
 An intervening act does not break the chain of causation if the def’s
negligence was itself a contributing cause of the intervening act
 The injury caused Medlin pain & depletion of intellectual energy  must
retire from teaching in order to maintain his ordinary level of research (his
work)
 This reason is a natural step in the chain of causation originating from the
def’s negligent act
 Even though it was the pl’s voluntary decision to retire prematurely, the
decision was forced upon him by the injuries with no other reasonable
alternatives
 McKew v Harman, Hollands and Cubitts
 A pl’s act is an interrupting cause (breaks the chain of causation) of injury if:
 the pl’s act was unreasonable (he deliberately chose to face an unnecessary
risk) and
 there are acceptable alternatives that would have avoided that injury
 The pl was not forced to descend the stairs without adult assistance  his
deliberate and unreasonable act of descending without adult assistance was an
intervening act  def not liable for the subsequent damage of falling
 The Oropesa
 The act of a third person only relieves the def from liability if it is voluntary
 A reasonable response to a danger created by the def is not voluntary
 Mahony v Kruschich
 Grossly negligent conduct by a third party interrupts causation and becomes a
new cause  third party liable completely
 If normal negligence, then apportionment of damages occurs between the third
party and original def