No duty of care is owed by barristers in respect of their in court work or work intimately connected.
D'Orta-Ekenaike v Victoria Legal Aid  HCA
Legal aid - undue pressure to plead guilty - wrongful conviction overturned on appeal.
Military personal engaged in actions against the enemy do not owe a duty of care.
Shaw Savill & Albion Co Ltd v The Commonwealth (1940) HCA
HMAS Adelaide - collision - duty 'opposed alike to reason and to policy'.
Parents owe no duty of care to their children unless they positively create a situation of danger i.e. taking to the beach.
Robertson v Swincer (1989) SASC per King CJ
Walking with child - failed to prevent wandering onto road - no positive creation of situation of danger.
A duty of care is owed to anyone you can reasonably foresee being harmed by your acts or omissions (the "neighour principle").
Donoghue v Stevenson  UKHL per Atkin LJ
Ginger float - snail in bottle - neighbour principle.
At common law, the meaning of reasonably foreseeable is ‘not far-fetched or fanciful’.
Wyong Shire Council v Shirt (1979) HCA
Jetski - 'deep water' - water only 4 ft in part.
The actual plaintiff does not have to be known, as long as the plaintiff fits into a class of persons it is reasonably foreseeable could be harmed by the defendant’s acts or omissions.
Champan v Hearse (1961) HCA
Motor collision - Dr Cherry killed assisting - duty owed to class of persons reasonably foreseeable would assist accident.
A defendant owes a duty to all members of a class, and must accept a spectrum of people with different degrees of vulnerability (i.e. egg shell skull rule).
Chester v The Council of the Municipality of Waverley (1939) HCA per Evatt J (diss)
Boy drowned in council's open trench - mother's nervous shock - argued no duty as mother 'suspetible and emotional'.
People with a disability are capable of falling within a class to whom a duty is owed.
Haley v London Electricity Board  UKHL
Footpath works - left unattended - blind man.
The law should not admit "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class." ("floodgates")
Ultramares Corporation v Touche (1932) NYCoA per Cardozo J
Negligent audit - company bankrupt - lender sued.
Doctors warn patients of a material risk inherent unless it would damage mental or physical health.
Bolan test has no operation in context of failure to warn.
Rogers v Whitaker (1992) HCA
Surgery - 1/14,000 risk of infection - would have refused.
Previously, motorist did not owe a duty of care to bystanders who might suffer pure mental shock as the result of witnessing an accident.
Bourhill v Young  UKHL
Motorcycle accident - woman wandered onto scene - not a 'foreseeable' victim.
A class of plaintiffs to whom a duty is owed will not include the abnormally vulnerable.
Levi v Colgate-Palmolive Pty Ltd (1941) NSWSC per Jordon CJ
Bath salts - girl injured due to sensitive skin - such plaintiff's 'not reasonably forseeable'.
If Defendant damages a third party's property, and you suffer consequential loss, what type of damage have you suffered?
Pure economic loss.
"What is “a proper system of work” is a matter for evidence, not for law books."
Whether specific conduct falls short of the standard of care is a question of fact.
Qualcast (Wolverhampton) Ltd v Haynes  UKHL
Moulder - molten metal spilled - no protection and injured left foot.
Generally, a defendant must act with the prudence of a reasonable man. It is irrelevant they were doing their best.
Vaughan v Menlove (1837)
Haystack - constructed hazardly - ignited and damaged neigbour's property.
For children, the standard is the objective standard to be expected of an ordinary child of comparable age.
McHale v Watson (1966) HCA
Two tweleve year olds - threw sharpened rod - hit eye.
Psychiatric illnesses does not lower or modify the standard of care required.
Carrier v Bonham  QCA
Chronic schizophrenia - jumped in front bus - driver suffered psychiatric injury.
A plaintiff's inexperience will not modify the duty of care.
Imbree v McNeilly (2008) HCA
16 years 5 months - outback - inexperienced and unlicenced.
A person with special skills, or someone who holds themselves out as having special skills, is held to a higher standard of care.
See also s 58(a) Wrongs Act 1958.
Phillips v William Whiteley Ltd  KB
Jeweller - ear-piercing - not held to standard of surgeon.
At common law, breach of duty is not to be assessed with the benefit of hindsight.
Roe v Minister of Health  per Denning LJ
Anaesthetics - stored in phenol - undectable micro-cracks caused contamination and paralysis when injected.
Which section of the Wrongs Act 1958 confirms that negligence against people with a special skill is to be assessed contemporaneously, not at the time of judgement?
s 58(b) Wrongs Act 1958
'...the standard to be applied by a court...[considers the] circumstances as at the date of the alleged negligence and not a later date.'
Under the Wrongs Act, the enquiry is what precautions a reasonable person would take in light of a reasonably forseeable, and not insignificant risk.
s 48(1)(a) - (c) Wrongs Act 1958
the risk was foreseeable and...not insignificant and...a reasonable person would have taken precautions.
Insignificant risks include, but are not limited to, risks that are far-fetched or fanciful.
s 48(3)(a)-(b) Wrongs Act 1958
insignificant risks include, but are not limited to, risks that are far-fetched or fanciful...
In determining the precautions a reasonable person would take, the 'negligence calculus' must be used.
s 48(2) Wrongs Act 1958 (and Wyong.)
When there is a low chance of a risk occuring, no precautions need be taken.
Bolton v Stone  UKHL
Six - hit bystander - 'not the law that precautions must be taken against every peril'
The more serious the harm that could be suffered, the more precautions required.
Paris v Stepney Borough Council  UKHL
General garage-hand - one eye - not issued goggles.
The more burdonsome the precautions, the less likely they will have to be taken.
Graham Barclay Oysters Pty Ltd v Ryan  HCA
Heavy rainfall - oysters contaminated with HepA - undetectable, so shut down or relocate.
The greater the public benefit that flows from the defendant's activity, the less likely that a reasonable person would have taken precautions.
Watt v Hertfordshire County Council  EWCA
Woman trapped under care - firemen did not strap down jack - emergency justified risk.
A professional is not negligent if they act in accordence with a practice 'widely accepted in Australia by a significant number of respected practitioners'.
s 59(1) Wrongs Act 1958
'...widely accepted in Australia by a significant number of respected practitioners in the field ... as competent professional practice.'
Peer professional opinion cannot be relied on if the court considers it unreasonable.
s 59(2) Wrongs Act 1958
'...peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.'