Duty of Care
Duty of Care
Duty of Care
A duty is imposed on a person by law to act with care towards others. If this duty exists and there is a failure to act carefully and another suffers loss, then the tort of negligence is committed.
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29
Facts:
Ms Cole attended a champagne breakfast at the South Tweed Heads Rugby League Football Club
At 6.20 pm Ms Cole was struck by a car near the Club and was seriously injured She was found to have a blood alcohol concentration of 0.238% Who was responsible for Ms Coles injuries? Why?
Negligence defined
Negligence is
the omission to do something that a reasonable person would do doing something which a prudent and reasonable person would not do
or
Negligence
In order to succeed in a negligence action the plaintiff must establish on the balance of probabilities that:
the defendant owed the plaintiff a duty of care the defendant fell below the required standard of care (breach of duty), and the plaintiff suffered damage that was: caused by the defendants breach of duty, and not too remote
Duty of care
The defendant owes the plaintiff a duty of care if it is reasonably foreseeable that any carelessness on the part of the defendant could harm the plaintiff. This is a question of fact. CASE: Grant v Australian Knitting Mills (1933)
CASE: Levi v Colgate-Palmolive Pty Ltd (1941) A manufacturer does not owe a duty of care to every consumer (e.g. one with abnormal sensitivities) However, there may be special circumstances that give rise to a duty to take special precautions to protect abnormal persons known to be likely to be affected
Negligent misstatements in relation to people being advised Road users to other road users School authorities to students Occupier of premises to persons entering the premises Bailee of goods to bailor
Supplier of goods or services to persons being supplied Local councils e.g. to persons requiring zoning information Solicitor holding will to executor named in will Dog owners to people who may be bitten
At common law, there will be no breach of duty where the injury arises as a result of a failure to act (i.e. no duty to effect a rescue) Exceptions include: doctor and patient
CASE: Rogers v Whitaker (1992)
Legislation has, in relation to professionals and statutory authorities, introduced a new test for standard of care
professionals: Part X, Div 5 Wrongs Act 1958 (Vic) public or other authorities: Part XII Wrongs Act 1958 (Vic)
Duty of care
At one time, the defendant also owed the plaintiff a duty of care if there was proximity between the defendant and the plaintiff Proximity
means nearness or closeness is a limitation on the test of reasonable foreseeability can be: physical, in the sense of space and time circumstantial, in the sense of a relationship such as employer-employee or professional adviser-client causal, in the sense of the closeness or directness between the defendants actions and the damage
Duty of care
Proximity is no longer a common law test for duty of care as today it is determined by the application of the foreseeability test and whether there was a vulnerable relationship between D and P
The test of proximity was rejected in the case of Sullivan v Moody (2001)
Duty of care
Three factors are required to be considered for vulnerability:
1.
1.
2.
Cole?
Negligent misrepresentation
Economic loss caused by negligent misrepresentation is recoverable where: a special relationship exists between the parties; the defendant accepted responsibility in the circumstances of the advice; and the plaintiff relied upon the misrepresentation.
CASE: Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964]
Negligent misrepresentation
The High Court has made it clear that the key to the existence of a duty of care is whether the information or advice was prepared for the purpose of inducing the representee to act in a particular way.
CASE: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997)
Relational interests
Where the plaintiff is not directly affected but is affected because of their relationship with the primary victim
CASE: Perre v Apand (1999) CASE: Johnson Tiles Pty Ltd v Esso Australia [2003] CASE: Hill v Van Erp (1997) CASE: Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976)