T1, 2021 business law lecture week 5 - law of torts - negligence 1

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2105 AFE – Introduction to Business Law
Lecture 5 – The Law of Torts - Negligence

2. TORT
• The word “tort” is an old French word meaning wrong.
• The word as used in law means a breach of duty which
gives rise to a civil action in law and for which
compensation is recoverable but is not a breach of
contract.
• The time limit for bringing an action in negligence in
Queensland is 3 years from the date the damage
occurs.
• A tort is a breach of a duty potentially owed to the
whole world. A tort is distinguished from both contract
law and criminal law.
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3. LAW OF NEGLIGENCE
Objectives
– Define a tort and distinguish it from the laws of contract
– Explain the four elements in proving negligence with
reference to relevant case law
– Explain the defences of contributory negligence and
voluntary assumption of risk
– Vicarious Liability – Employer and Employee relationship
– Understand the role of the Civil Liability Act 2003 (Qld)
(“CLA”) in the context of negligence
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4. continued
The differences between law of torts and contracts:
(1) Third parties may sue in tort (e.g. Jaensch v
Coffey), whereas the privity of contract rule
applies in contract.
(2) Responsibility for loss: There is contributory
negligence where a person is partly to blame
(tort) / party in breach of contract is 100% liable.
(3) Damages: Restore the injured party to the
position they were in before the tort was
committed (tort) / place the injured party in the
position they would have been had the contract
been performed (contract).
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5. Elements of Negligence
In order to establish an action in negligence a plaintiff
must show:
(1) The Defendant owed the Plaintiff a duty of care
recognised by law
(2) The Defendant breached that duty of care
(3) The Plaintiff suffered harm (loss, injury and/or
damage) as a result of the Defendant’s breach of the
duty of care (involves questions of causation and
remoteness); and
(4) The Plaintiff’s damage or injury was not too remote
from the breach.
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The Tort of Negligence
• A breach of a ‘duty of care’ becomes actionable by the
person suffering damage. The action then becomes the
Plaintiff against the person who did the act or made the
omission i.e. the Defendant or tortfeaser.
• Definition: In tort law a ‘duty of care’ is the obligation
owed to anyone whom it is ‘reasonably forseeable’ would
be injured by the lack of care of that person.

7. 1. Duty of Care – Requirements
In order for there to be a duty of care there must be two
elements considered:
(a) reasonable foreseeability; and
(b) Proximity (closeness)
Foreseeability - this considers if it is foreseeable that
an action or omission will cause harm.
It is an objective test – would a reasonable person have
foreseen that damage may result from the defendant’s
actions? The question can also be put this way: “what class
of people might possibly be at risk of loss, injury or damage
by the defendant’s actions?”
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8. Donoghue v. Stevenson [1932]
(‘the neighbour principle’)
• Perhaps the most famous case in the legal history of ‘negligence’
and the one that started it all!
Facts: Mrs D went with a friend into a café near Glasgow to have a ginger
beer float. A bottle of ginger beer made by Stevenson was brought out to
her to pour over the ice-cream. The bottle was opaque. She drank the first
part. Her friend then poured the remainder of the ginger beer out and a
decomposed snail came out as well! Mrs D became quite ill and sued not the
café owner (with whom there was a contract) but the drink manufacturer
who manufactured it.
Held: Manufacturers have a duty to consumers to ensure that their
products do not contain dangerous defects which cannot be discovered on a
reasonable inspection.
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9. Nova Mink Ltd v Trans Canada Airlines
Facts: The defendant airline flew an airplane over
the plaintiff’s mink farm. The noise from the aircraft
was shown to have upset the female minks and to
have caused them to eat their young.
Held: The court held no duty of care was owed
by the defendant airline to the plaintiff. The plaintiff
had been unable to prove that there was a
reasonably foreseeable likelihood of harm of the kind that occurred
in the circumstances although the possibility of such harm existed.
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10. Duty of Care – Requirements (Proximity)
• Before there is a duty of care there must be a
relationship between the parties such that they
are proximate or close enough to have a duty
imposed upon them.
• Proximity involves a notion of closeness or nearness.
Jaensch v Coffey (1984)
Facts: The plaintiff’s husband, a police motorcyclist, was badly
injured in a collision with a car negligently driven by D. The P
was not at the scene of the accident but she was called to the
hospital. P saw her husband at the hospital and feared he
would die. The husband recovered, but the P developed anxiety
and depression.
Held: the D owed the P a duty of care in respect of the psychiatric
injuries. There was proximity in the relationship between the D
and the P because the P saw the immediate aftermath of the
accident at the hospital.
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11. Duty of care: Hay (Bourhill) v. Young
(proximity)
Facts:
In this case a motorcyclist was killed in a road accident for which he was
responsible. A pregnant woman, who had got off a tram at scene of the
accident (having heard the noise of an accident) claimed that when she
reached the scene of the accident she saw blood on the road and as a
result suffered shock which put her into premature labour - resulting in
the loss of the baby. She subsequently brought a claim in relation to
nervous shock and the resulting loss/damage.
Held:
There was no duty of care owed to the plaintiff because there was no
‘proximity’ i.e. no relationship b/w the plaintiff and the defendant.
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12. 2. Breach of duty of care – Civil Liability Act 2003
• Section 9 of the Civil Liability Act:
The risk of harm must be foreseeable (section 9(1)(a) Civil
Liability Act), not be insignificant (section 9(1)(b)) and a
reasonable person in the position of the Defendant would have
taken the precautions against the risk of harm (section 9(1)(c). In
deciding the third issue, the Court considers the following
factors:-
• The probability that the harm would occur if care were not taken (section
9(2)(a));
• The likely seriousness of the harm (section 9(2)(b));
• The burden of taking precautions to avoid the risk of harm (section 9(2)(c));
and
• The social utility of the activity that creates the risk of harm (section 9(2)(d))
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13. 2. Breach of duty of care
• Once it is established that the defendant owed the plaintiff a duty
of care, the next issue to consider is whether there has been a
breach of that duty.
• The defendant has breached the duty of care to the plaintiff:
(a) if the risk of injury to the plaintiff was reasonably foreseeable
(b) If the defendant failed to do what a reasonable person
ought to have done to prevent this foreseeable risk.
• When determining the Standard of Care, the court will take into
account the following three factors:
(i) Likelihood of harm/injury
(ii) Gravity of the harm / serious consequences
(iii) Conformity with established standards or customs
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14. 2(i) Likelihood of harm/The Probability of Harm
If the probability of something happening is small a
reasonable person would not take precautions to
prevent it so there is a low probability = less likely to be a breach
of duty.
Boulton v Stone [1951] AC 850
Facts: Plaintiff was injured when she was struck by a cricket
ball that had been hit out of the Defendant’s cricket ground.
The ball had traveled approximately 90 metres and cleared a
protective fence which was approximately 17m above
the level of the cricket pitch.
Held: The D had not breached its duty of care. The fact that only ten balls had been
hit out of the ground in the last 30 years with no-one being injured, made the
risk of injury so minimal that the steps taken by the D to avoid the risk were
reasonable.
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15. 2(ii) Gravity of the harm / serious consequences
A reasonable person will take more precautions if the potential harm
has more serious consequences than if the potential harm is less
damaging.
Paris v. Stepney Borough Council [1951]
Facts: Paris lost the sight of his left eye in WWII. He then lost sight in his right
eye whilst operating machinery at work.
Held: The employer owed Mr Paris a higher than normal standard of care
because of the greater risk to him, not of an accident occurring, but of a
serious injury if an accident involving possible eye damage did happen. A
person with normal sight may not have been blinded by the accident . The
risk of blindness is greater for an one-eyed man than a two-eyed man
involved in this type of work.
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2(ii) Gravity of the harm / serious consequences
Vairy v Wyong Shire Council [2005]
Facts: Vairy suffered spinal injuries when he
dived into the sea from a rock platform at a
popular surfing beach on the NSW Central
Coast. The central issue was whether the
council had breached its duty of care by not
erecting warning signs about the dangers of
diving from the rock platform.

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2(ii) Gravity of the harm / serious consequences
• Held: By a 4:3 majority the High Court
decided that the council had not breached
its duty of care to Mr Vairy as the risk of
injury was obvious to a reasonable person
in his position.
“…the sea waters of Australia, notoriously, are far
from benign. ...We do not think it can be seriously
suggested that a shire should erect a multiplicity of
signs in the vicinity of its beaches saying ‘swimming
can be dangerous’. Per Callinan and Henderson JJ.

18. (iii). Conformity with established standards or
customs (duty to warn of risk)
Courts will consider evidence as to what is the
customary or professional standard used for the
activity in question, particularly in cases of
negligent misstatement and medical negligence.
Rogers v. Whitaker (1992)
Mrs Whitaker, who was almost blind in one eye, consented to have
an operation on her good eye. Her surgeon, Mr Rogers did not
inform her that there was low risk (1 in 14,000) of a complication
known as ‘sympathetic ophthalmia’. Mrs Whitaker suffered from this
problem after the operation and became almost totally blind. The
court held that the surgeon had breached his duty of care.
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19. **Vote Break** 3. Factual Causation
• The next matter to consider is whether the conduct of the defendant
has caused harm to the plaintiff.
• In relation to causation the plaintiff must establish that the defendant’s
conduct was a cause of the plaintiff’s damage.
• The Plaintiff has the onus of proving causation on the balance of
probabilities.
• Factual causation: The most generally accepted method of
determining whether there is a causal connection is the "but for" test;
that is, but for the defendant’s negligence (or failure to take due care)
the damage to the plaintiff would not have occurred.
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20. 3. Factual Causation
• Factual Causation: It must be more probable than not that
the defendant’s breach of duty caused the plaintiff’s harm
and would be appropriate to extend the scope of the
defendant’s liability to the harm caused.
• s11 (1)(a) - “But for” test: Would P have suffered loss but for
D’s negligence? The ‘but for’ is is a limited test in that it does
not cover all situations:
• (Barnett v Chelsea and Kensington Hospital Management
Committee or Cork v Kirby MacLean Ltd – next slide).
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21. Cork v Kirby MacLean Ltd (but for test)
• Facts: In Cork, the plaintiff's husband was killed when he had an
epileptic fit and fell from a painting platform 20 feet above the
ground. The platform was unsafe, because it did not comply with the
statutory safety regulations, but the plaintiff's husband had also been
negligent in not informing his employer that his doctor had forbidden
him to work at heights because he could not suffer a fit and then fall.
Held: The Court held that Cork's death was caused, in equal
measure, by both his own negligence and also the employer's failure
to comply with safety requirements.
 The final determination of causation must be by common sense,
eliminating those apparent causes that are too remote. Common sense
will show that sometimes there are multiple causes, or a sole cause, or a
dominant cause.
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22. Common sense test:
• Common sense test: Can P prove on the balance of
probabilities that D in fact caused P’s harm? The ‘common
sense’ test is a broader test
• s11 (1)(b) - Scope of liability: It is appropriate for the scope of
D’s liability to extend to the harm caused: State Rail Authority
v Wiegold – next slide
• s11(4): Remoteness of damage: it must not be too remote,
that is, it must have been reasonably foreseeable: Overseas
Tankship Ltd v Morts Dock Engineering Co Ltd (The Wagon
Mound No. 1); or Mt Isa Mines v Pusey; or Commonwealth v
McLean) – later slide.
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23. State Rail Authority v Wiegold (common sense test)
Facts: P. (employed by the D. as a maintenance linesman), was injured
when he fell down a railway embankment. The P. could not see
where he was going because the torch he had been given by the
defendant was not working. Following the accident, the P received
workers compensation. He began to worry about how he could
support his family once his entitlements ran out. His solution was to
grow and sell marijuana.
P was arrested, convicted and imprisoned. He sued the D alleging that
the employer’s negligence caused the P’s imprisonment.
Held: (court on appeal): As a matter of common sense the
imprisonment was not caused by the defendant’s negligence.
The plaintiff could not prove it was more probable than not that
the defendant caused the plaintiff to engage in criminal activities.
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24. 3. Causation: - Novus Actus Interveniens
• This deals with the situation where a new act intervenes.
• This ‘new intervening act” allows the defendant to escape from
liability if the act is not reasonably foreseeable.
Yates v Jones [1990]
Facts:
The Pl. injured in a car accident was offered heroin as a form of pain
relief by one of her hospital visitors. She became addicted to heroin
and developed a $900 per day habit. P sued the driver of the motor
vehicle for $25,000 in general damages and $45,000 damages
representing her heroin addiction.
Held:
P was not entitled to the $45,000 damages. The hospital visitor’s
actions broke the chain of causation between the car accident and
the plaintiff’s losses incurred from heroin addiction.
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25. 3. Causation – Remoteness
• If the harm suffered by the plaintiff is too remote or “far-fetched”,
it will not be recoverable.
• The issue is should the Defendant be responsible for the harm or
is the harm too remote a consequence of the Defendant’s
negligence? In other words, the courts do place a limit on how
much damage the defendant will be liable for.
• This test was stated in a case known as the Wagon Mound.
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26. Wagon Mound Case ( No1)
( aka The Lucky Lady)
This case provides an interesting example of how the law
can sometimes develop to give a possible unjust result.
Facts: The respondent Engineering Co. were the owners of a
wharf in Sydney Harbour. An oil bunker (the Wagon Mound)
was moored in Sydney harbour. The ship’s crew negligently
allowed a large quantity of furnace oil to escape into the harbour (the ship spilled some oil
into the harbour). The oil drifted up the harbour with the tide. The respondent engineering
company had employees working on the wharf using arc welders. Sparks from a welder set
fire to a cotton waste which in turn set fire to the oil slick, and the wharf was damaged.
Held: On appeal the Privy Council found the defendants were not liable for the fire damage to
the wharf. The negligence of the ship’s crew was too remote and was not reasonably
foreseeable. The court decided that it was not reasonable to assume that the act of spilling
oil into the harbour would result in a fire on a wharf some distance away.
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4. Defences to Negligence:
Two main defences :
• Contributory Negligence is a defence in an action for negligence. It is
raised where the plaintiff’s own negligence directly caused or
contributed to their own injuries.
– Where a defendant raises contributory negligence, this only lessens their
liability rather than removing it completely.
• Voluntary assumption of risk (VAR) is a defence in an action for
negligence meaning that an act to which a person consents cannot be
considered an injury.

28. 4. Defences to Negligence:
(i) Contributory negligence:
• Damages are reduced to the extent that the plaintiff contributed
to their own harm. This is a partial defence only.
The damages a negligent defendant has to pay can be reduced if the
defendant can prove, on the balance of probabilities, that:
(a) the plaintiff failed to take reasonable care,
(b) this failure contributed to the plaintiff’s loss or injury.
Example:
where a person knowingly got into a motor vehicle and the driver of
the vehicle was drunk. The court reduced the damages for the
defendant by 20% for the plaintiff’s contributory negligence.
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4. Defences to Negligence:
(i) Contributory Negligence
Definition: Contributory
negligence is a defence
against a claim of negligence.
• Contributory negligence is simply the failure of the
plaintiff to take reasonable care for his or her own
safety.
• Where contributory negligence can be established
damages are reduced under apportionment
legislation.(S23 CLA)
• See Next Slide: March v E & MH Stranmere Pty Ltd
(1991)

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March v E & MH Stranmere Pty Ltd (1991)
Facts: P, drunk and speeding, drove into D’s truck which
had been parked in a manner straddling the centre of a
six-lane highway in central Adelaide.
Held: The trial judge apportioned blame to both the
plaintiff and the defendant. It was held that there were
two negligent acts - the judge awarded 70% responsibility
against the plaintiff and 30% against the defendant.
Torts pertaining to car accidents are frequently resolved
through apportionment of blame.

31. 4. Defences to Negligence:
(ii) Voluntary Assumption of Risk
(Volenti Non Fit Injuria)
The plaintiff fully comprehended the risk involved
and consented to the risk of harm.
This is a complete defence.
Requirements for voluntary assumption of risk:
n The consent must be voluntary
n The risk must be perceived and fully understood
n The risk must be within the scope consented to.
Example:
Two young rugby players who had suffered severe spinal injuries in separate
rugby union games were unable to prove negligence. The court held
that the players had known and understood the dangers of the game
and had willingly consented to accept the risk involved. (Agar v Hyde)
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4.(ii) Defences to negligence:
Voluntary Assumption of Risk
(volenti non fit injuria)
Definition: VAR is a complete defence to a claim of
negligence by which a plaintiff is denied compensation
for an injury incurred as a result of the defendant’s
negligence where the plaintiff has voluntarily exposed
himself to the risk of being injured.
• If the defendant can prove that the plaintiff voluntarily
assumed the risk of being injured as a result of the
defendant’s negligence then the defendant cannot be
held liable.
See: Insurance Commissioner v Joyce (1948) 77 CLR 39 –
next slide

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4. (ii) Defences to negligence:
Voluntary Assumption of Risk (volenti non fit injuria)
Insurance Commissioner v Joyce (1948) 77 CLR 39
Facts: The pl. was a passenger in a car driven by a man named Kettle. The
pl. was found drunk, injured and unconscious in a truck, still in the
passenger seat of the car which had crashed into the back of the stationary
truck. K was found under some nearby bushes asleep and very drunk. K
admitted to the police that the accident was brought about by his own
mismanagement. The pl. sued K claiming negligence against K.
Held: By 2-1 majority the HCA held that as the pl. knew that K was drunk
when he accepted a ride, the pl. assumed the risk. Thus the pl’s action
failed.

34. Obvious Risk
• An “activity engaged in for enjoyment, relaxation or
leisure that involves a significant degree of risk of
physical harm to the person” (section 18).
• Test (section 19):
– The Plaintiff’s harm must be suffered as a result of the
materialisation of an obvious risk (definition at s13);
– The Plaintiff was engaged in a dangerous recreational activity;
– The obvious risk must relate to the dangerous recreational
activity.
• For you to consider: Refer to the facts in Wyong Shire
Council v Shirt. Would the Court have come to a different
decision if it had applied ss17-19 CLA?
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Obvious Risk:
Public Authorities
• Where the risk is obvious, the duty
owed by a public authority will be
minimal –
Romeo v Conservation Commission of the NT (1998)
• FACTS: Romeo a 16 year old girl who was drunk on rum at a
beach party, fell off the Dripstone Cliffs in the NT and became
a paraplegic. R claimed damages alleging that CCNT had been
negligent in failing to warn of the danger of the cliff.
• HELD: R failed. The HCA decided that there had been no
breach of duty of care. The danger should have been obvious
to a reasonable person, as such, R had not taken reasonable
care to avoid harm.

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No Duty to Warn of Obvious Risks
Vairy v Wyong Shire Council [2005]
(Obvious risk – burden of taking precautions)
Facts: Vairy suffered spinal injuries when he dived
into the sea from a rock platform at a popular surfing
beach on the NSW Central Coast.
The central issue was whether the council had
breached its duty of care by not erecting warning signs
about the dangers of diving from the rock platform.

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No Duty to Warn of Obvious Risks
Vairy v Wyong Shire Council [2005] (cont.)
(Obvious risk – burden of taking precautions)
• Held: By a 4:3 majority the High Court decided that
the council had not breached its duty of care to
Vairy as the risk of injury was obvious to a
reasonable person in his position.
“…the sea waters of Australia, notoriously, are far
from benign. ...We do not think it can be seriously
suggested that a shire should erect a multiplicity of
signs in the vicinity of its beaches saying ‘swimming
can be dangerous’. Per Callinan and Henderson JJ:

38. Duty to Warn about
Non-Obvious Risks
Nagle v Rottnest Island Authority
FACTS: Nagle a regular diver hit his head on a
submerged rock, becoming a quadriplegic, when he dived from a rock
ledge into the water at the Basin, Rottnest Island. Nagle sued the park
managers in negligence for failing to put warning signs at the site.
HELD: By majority: RIA were liable in negligence. RIA as managers of the
park owed a general duty of care at common law to take reasonable care
to avoid foreseeable risks of injury to visitors to the site. The likelihood
was that Nagle would not have dived if there was an appropriate warning
sign. The court also took into account; the hidden danger of submerged
rocks and that as the area where Nagle dived from was only a small area it
would not have been too onerous (too much of a burden) to erect a sign
warning of the danger.

39. No Duty to Warn of Obvious Risks
Amos v Brisbane City Council
Facts: In this decision the plaintiff tripped over
a water valve located on a footpath at Albion.
He sued the Brisbane City Council for damages
for the personal injuries that were sustained
in the incident.
Held: The plaintiff failed as the Court held that the
risk was obvious to a reasonable person. As the
valve and hydrant were clearly visible in the
daylight no duty of care was owed by the BCC
to Amos.

40. Obvious Risk
(1) The plaintiff was injured whilst batting at the
Defendant’s indoor cricket centre. The ball deflected
off the plaintiff’s bat, striking the plaintiff in the eye,
leaving the plaintiff almost totally blind in that eye.
(2) The plaintiff dived into the sea from a high rock
platform and was consequently seriously injured.
- “Your choices are your own responsibility”?
- “You should assume a degree of risk when
engaging in recreational activities”?
- What do you think?

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Business Applications of Negligence
• Main applications of negligence to business:
– Occupier’s liability;
– Public authorities;
– Product liability;
– Defective structures;
– Negligent misstatements; and
– Vicarious liability.