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Negligence Map

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on 21 August 2018

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Transcript of Negligence Map

Negligence Map
Are the Defendant and Plaintiff in a relationship recognised as an "established category" giving rise to a duty of care?
Doctor - Patient (Rogers v Whitaker)
Employer - Employee (Wilsons and Clyde Coal v English)
Driver - Road User (Edwards v Noble; Imbree v McNeilly)
Is the scope of the existing duty in question?
Modbury Triangle Shopping Centre v Anzil
(2000) 205 CLR 254 concerned the established category of occupier - entrant. What was in question was the scope of the occupier's duty (did it extend to protecting a lawful entrant from the criminal actions of third parties?).
Broadly speaking, what type of harm are we dealing with?
2. Has the Defendant breached their duty of care to the Plaintiff?
Personal/physical Injury
(including consequential loss)
Pure Psychiatric Injury (PPI)
Pure Economic Loss
1. Reasonable foreseeability: Donoghue v Stevenson
Apply "current approach"
- Would the reasonable person in the Def's position have foreseen that there was a real risk that carelessness on his/her part could cause loss/harm to PEOPLE in the Pl's position?
- What CLASS of people might possibly be put at some risk of injury in some way?
- Is the Pl one of those people?
2. Salient features including Vulnerability:
3. Judicial evaluation for and against imposing a duty - consider here Policy factors
- Was there a vulnerable relationship (position of reliance)?
- Was the Def in such a position of power (through resources, knowledge, legal duty or right) and knew this?
- Was the Pl in a position of powerlessness such that the Def could be said to be responsible for protecting the Pl's vulnerability?
- What are the problems with this type of case?
- policy can operate to exclude liability.
"Policy" considerations can include value judgements as to fairness and consequentialist or utilitarian arguments. Also considerations of whether a duty would lead to indeterminate liability; and the restraining of legitimate business activities (concerns about social and economic ramifications)
Should a duty be imposed?
Starting point: s.9 CLA
Has there been a breach?
3. Has the Defendant's breach

the Plaintiff's loss?

Starting point: s. 11 CLA
Is a Risky Activity involved?
1. Does the Defendant owe
the Plaintiff a duty of care?
In Qld, the common law applies:
serious psychiatric condition; more than mere grief or fright (
McPherson v Commr for Govt Transport
must be 'recognised psychiatric injury' (
Should a duty be imposed?
This is not a novel case, so go straight to Breach.
This is a novel case. We need to analyse the Duty question further.
Go to breach.
This is a novel case. We need to analyse the Duty question further.
- a financial loss or cost that has not flowed from any physical injury or damage.
Negligent misstatement/misrepresentation
"Special relationship" gives rise to a DOC
Relational Loss to Third Parties
Builder liability to subsequent purchasers for PEL
Negligent acts of professionals causing PEL to third parties
Case Examples:

Hill v Van Erp
Hawkins v Clayton
White v Jones (UK)
Should a duty be imposed?
Negligent Acts causing PEL
Should a duty be imposed?
If no, no liability.
If yes, breach can be indicated by actual reliance by Pl. Continue on to breach provision.
No liability
Liability will be imposed unless:
- A defence applies

- Def has special immunity

- There is a valid exclusion clause
Defences to Negligence
Special Immunity
- no liability for carrying out community work in good faith (s 39)
- no liability for Public Safety Entities and persons performing duties for such entities if aid is given to a person in distress: during an emergency, in good faith, and without reckless disregard to that person's safety. (ss 26 and 27 CLA)
- no liability for medical professionals giving assistance/aid during emergency, in good faith and without gross negligence. (s 16 Law Reform Act)
- No liability for inherent risks (ie cannot be avoided by exercising reas. care) (s 16 CLA)
- No liability for obvious risk from dangerous recreational activity (s 19 CLA)
No liability.
If no, no liability arises.
If yes.....
No liability.
Is the Def a public authority?
(important regardless of type of loss suffered)
Liability of Public Authorities
s 35 CLA outlines principles to apply in deciding whether a public authority has a duty or has breached its duty.
Two ways they may be liable:

(1) Failing to exercise a statutory power (ie not doing something)
(2) The negligence exercise of a statutory power (ie doing something badly)
Common law cases are important for interpreting the provisions of section 35.
Full transcript