Torts Week 4

Elements of negligence
o D owed P a duty of care
o Duty was breached
o Breach caused damage to P
General principle as reference for novelty cases/categories of
negligence
Proximity principle: Heaven v Pender; Le Lievre v Gould
Donoghue v Stevenson: manufacturer selling a product without
intermediary examination owes a duty to the consumer to take
reasonable care. Established duty of care principle beyond physical
proximity.
Hedley Byrne & Co v Heller & Partners Ltd: words (advice of bank) of
reasonable man knowing his skill/judgment being relied upon should
accept responsibility. Negligent words causing pure economic loss.
Home Office v Dorset Yacht: People/property who might be harmed was
foreseeable, HO liable for their neglect of duty to control trainees.
In Australia 1980s, HCA relied on proximity principle: Sutherland Shire v
Heyman; Burne Port Auth v General Jones. Replaced by salient factors
approach limited in its scope according to category (context)
Kuhl v Zurich: reasonable foreseeability and salient features b/w P and D
per French CJ, Gummow J
Indeterminacy: depends upon D knowing/ought to number/nature of
claims, not the actual number. The ripple effect of liability is void; no duty
applies to those beyond first line.
Vulnerability: Duty not established if P can or should take steps to protect
from D. Esanda Finance Corporation Ltd v Peat Marwick Hungerfords: P
were sophisticated investors to handle circumstances.
Control: Ds control of Ps right, interest or expectation: Hill v Van Erp;
Pyrenees Shire Council v Day.
Insurance/loss spreading is NOT guiding rationale in Aus for negligence.
Class: being ascertainable (established) or indeterminate (not
identifiable)
Perre v Apand: Pure economic loss by an act, moved away from personal
injury/property damage for negligence.
Duty of Care (DoC)
o Act/omission words or physical
o Type of harm personal, psychiatric, property, pure economic loss
o Who D is individual, public auth, manufacturer
o Who P is child, patient, 3
rd
party
Sullivan v Moody; Thompson v Connon: Parents were accused of sexual
abusing children, suffered damages by D (public auth) allegations. DoC
was owed to children, not parents. Statutory obligations (childrens best
interests > any foreseeable harm and DoC owed to parents/suspects)
Wyong Shire Council v Shirt: risk foreseeable if not fanciful or far-
fetchedCLA 2002 (NSW) s 5B risk not significant
Coherence b/w policy and DoC: Miller v Miller, DoC arose once criminal
behavior ceased. Liability is excused if person who suffered harm engaged
in indictable offence or contributed to risk of harm: CLA 2002 (NSW) s 54.