Torts Law Official Notes Essay

Submitted By Fadissa
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Chapter 7 –
Duty of Care in Negligence
Categories Approach to negligence
Negligence is a form of action on the case: for the indirect intentional infliction of personal injury (wilful injury) Negligence is comprised of three primary elements: (THIS IS NOT FOR DUTY OF CARE)
1. The defendant must have owed the plaintiff a duty of care.
2. that duty must have been breached.
3. that breach must have caused damage to the plaintiff.

In broad terms, a duty of care exists when there is a sort of a 'relationship' or a proximity between the defendant and the plaintiff. To establish a duty of care, the test is one of reasonable foreseeability:
A defendant will owe a duty of care to a plaintiff where it is reasonably foreseeable that his act (not omission) act might harm the plaintiff: CLA, s 5B (1) (a), Donoghue v Stevenson.

Requirements of duty of care

Duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another.

There are three elements:
A reasonable foreseeability of real risk to P either as an identifiable individual or as a member of a class of persons;
The existence of proximity between the parties with respect to the act or omission;
Absence of any rule that precludes such a duty.

Donoghue v Stevenson

The outcomes of Donoghue v. Stevenson established several legal principles and precedents:
Negligence. Firstly, the House of Lords ruling affirmed that negligence is a tort. A plaintiff can take civil action against a respondent, if the respondent’s negligence causes the plaintiff injury or loss of property. Previously the plaintiff had to demonstrate some contractual arrangement for negligence to be proven, such as the sale of an item or an agreement to provide a service. Since Donoghue had not purchased the drink, she could prove no contractual arrangement with Stevenson – yet Lord Atkin’s judgement established that Stevenson was still responsible for the integrity of his product.
Duty of care. Secondly, the case established that manufacturers have a duty of care to the end consumers or users of their products. According to Lord Atkin’s ratio decendi, “a manufacturer of products, which he sells… to reach the ultimate consumer in the form in which they left him… owes a duty to the consumer to take reasonable care”. This precedent has evolved and now forms the basis of laws that protect consumers from contaminated or faulty goods. These protections began as common law but many have since been codified in legislation, such as the Trade Practices Act (Commonwealth, 1974).
Neighbour principle. Thirdly, the Donoghue v. Stevenson case produced Lord Atkin’s controversial ‘neighbour principle’, which extended the tort of negligence beyond the tortfeasor and the immediate party. It raised the question of exactly which people might be affected by negligent actions. In Donoghue’s case she had not purchased the ginger beer but had received it as a gift; she was a neighbour rather than a party to the contract. Atkin said of this principle: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to have them in [mind] when I am [considering these] acts or omissions.”
The rule in negligence is that the defendant owes a duty of care not to harm his neighbor but he does not owe a duty of care to save his neighbor. However, the situation is different, if it is an omission that is giving rise to a duty to act. This is where some special or exceptional relationship exists between the parties which give rise to the liability for failure to act such as control and supervision role, duty of protection – school and student, parent and child. Home Office v Dorset Yacht Co Ltd 1970  7 boys from a reform school who were working on an island under the control and supervision of 3 prison