Duty of Care

Question 1

Established Duties

Answer 1

P & D in relationship that automatically gives rise to recognised duty; Donoghue v Stevenson

Question 2

Manufacturer + Consumer

Answer 2

Prevent Injury to persons when reasonable foreseeable they would use manufactured goods; Donoghue v Stevenson

Question 3

Occupier + Entrant

Answer 3

Ensure behaviours of others & actives on premises do not place others at foreseeable risk of harm; Australian Safeway Stores v Zalzuna

Question 4

Employer + Employee

Answer 4

Reasonable care not to expose employees to foreseeable risks of injury; Smith v Charles Baker & Sons

Question 5

Road Users + Other Road Users

Answer 5

Use proper care not to cause injury to other road users; Imbree v McNeilly

Question 6

School Authorities + Students

Answer 6

Precaution for safety as reasonable parent would have to avoid foreseeable risks; Commonwealth v Introvigne

Question 7

Medical Professionals + Patients

Answer 7

Exercise reasonable care & skill in provision of services; Rogers v Whitaker

Question 8

Legal Practitioners + Clients

Answer 8

Exercise due care & diligence in carrying out terms of retainer; Heydon v NRMA Ltd

Question 9

Established Non-Delegable Duties

Answer 9

Duty of Care to ensure reasonable care taken by others not to expose P to foreseeable risks; Kondis v State Transport Authority

Question 10

School Authority + Students

Answer 10

Vulnerability of Students & employing competent staff to supervise students; NSW v Lepore

Question 11

Hospitals v Patients

Answer 11

Care, supervision & control of patients in special need of care; Kondis v State Transport Authority

Question 12

Occupiers + Entrants

Answer 12

Non-delegable duty to care of licensees extends to persons affected by actives on premises; Burnie Port Authority v General Jones Pty Ltd

Question 13

Employers + Employees

Answer 13

Non-delegable duty to employees; Kondis v State Transport Authority

Question 14

Exception

Answer 14

Delegation of whole aspect of duty + to suitable qualified employee + mutual consent + employee is at fault; Witham v Shire of Bright

Question 15

Novel Non-Delegable Duties

Answer 15

P must prove characteristic in the particular circumstances; Kondis v State Transport Authority

Question 16

Vicarious Liability

Answer 16

D held liable for tort of another + an employer will be vicariously liable for wrongful act of employee during employment; Hollis v Vabu

Question 17

Step 1

Answer 17

Tortfeasor an employee NOT independent contractor

Question 18

Step 2

Answer 18

Employee committed tortious act

Question 19

Step 3

Answer 19

Tort committed in course of employment: Question of fact + Scope of employment identified + employer authorises act; NSW v Lepore

Question 20

Wrongful Mode

Answer 20

Act in scope of employment, but carried out wrong way; Bugge v Brown

Question 21

Express Prohibition

Answer 21

Merely regulates employee’s conduct but still in course of employment; Bugge v Brown

Question 22

Frolic

Answer 22

Act for interest of Employee, not in court of employment; Joel v Morrison

Question 23

Intentional Tort

Answer 23

NSW v Lepore

Question 24

Novel Duties

Answer 24

Does not fall within established duty + P must prove duty owed

Question 25

1. Recognised Kind of Harm

Answer 25

Identify whether recognised in law

Question 26

a) Pure Psychiatric Injury

Answer 26

Only harm suffered by P
i - Medically recognised; Tame v NSW
ii - Reasonably foreseeable; Gifford v Strang Patrick Stevedoring Pty Ltd

Question 27

Normal Fortitude

Answer 27

Not reasonably foreseeable unless reasonable person would suffer psychiatric injury; Tame v NSW

Question 28

Direct Perception

Answer 28

Resulted from harm of others; no longer required for liability; Tame v NSW

Question 29

Sudden Shock

Answer 29

Harm induced suddenly or by shock; relevant to foreseeability; Tame v NSW

Question 30

Relationship Between Parties

Answer 30

Closeness of parties; Annetts v Australian Stations Pty Ltd

Question 31

Coherency

Answer 31

Would it be consistent with other laws?; Annetts v Australian Stations Pty Ltd

Question 32

Indeterminate Liability

Answer 32

Would it create precedent?; Sullivan v Moody

Question 33

Pure Economic Loss

Answer 33

Direct economic loss not from injury to person/property; Marsh v Baxter

Question 34

i - Ascertained Class Test

Answer 34

Knowledge of plaintiff individually & not as member of unascertained class; Caltex

Question 35

ii - Five Salient Features

Answer 35

D’s knowledge of likelihood + D’s knowledge of existence + D’s infliction of damage + Nature of detriment suffered + Nature of damages claimed; Caltex

Question 36

iii - Physical Propinquity Test

Answer 36

Physical effect on person/property of Plaintiff; Caltex

Question 37

iv - Other/Common Features

Answer 37

Reasonable foreseeability + Vulnerability + Defendant control + Defendant Knowledge + Physical/Commercial Closeness + Would liability impose under burden on defendant; Fortuna Seafoods

Question 38

2. Reasonably Foreseeable

Answer 38

Harm result of defendant’s conduct

Question 39

3. Analogy, Induction & Deduction from Prior Cases

Answer 39

Within particular duty care category

Question 40

4. Factors Relevant to Duty

Answer 40

a) Control & Vulnerability: Plaintiff Vulnerability, Defendant
Control; Woolcock Street Investments Pty Ltd v CDG Pty
Ltd
b) Nature of Relationships
c) Coherency of Law: Would it be consistent with other
laws?
d) Indeterminacy: Would it create precedent; Ultramares
Corp v Touche, Niven & Co