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Flashcards in Torts B Deck (117)
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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 [2005] 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 [1932] 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 [1965] 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 [1943] 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 [1959] 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 [2001] 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 [1938] 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 [1954] 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 [1951] 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 [1950] 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 [2002] 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 [1954] 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.'