Torts Negligence Notes

Torts: Negligence 11th August: When do we decide where a duty of care exists? Causation? Not a tort of strict liability. The taking of reasonable care is a defence. Plaintiff has to establish defendant has fallen below what we would expect from a reasonable person. Even when nuisance or RvF is not available, if failure to take reasonable care is an issue, still in with a cause of negligence. Blyth v Birmington Waterworks: Negligence is the ommission to do something that a reasonable person would do, or doing something a reasonable person would not do. Negligence is about imposed obligations (as oppose to voluntarily assumed obligations like in contract). Contract and tort can look very close to each other. 13th August: South Australia Asset Management: - Almost concerned with the situation had no statement been made - We treat the statement as true - what benefits would they have gained if the statements had been true. Couch v AG: - Poor supervision by probation officer - Bell attacks at RSA - Public law remedies for this, e.g. judicially review Can we just bypass the constraints in public law and just go straight to negligence? Huge tension with how far negligence can come into the domain traditionally covered by public law. Criminal law and negligence claims - can we bring a negligence claim, despite criminal law? Even if harm, it won't be negligence unless there is a duty of care - goes right back to the origin of negligence and the assumption of responsibility. Donohue: Concerned with physical damage to the individual - careless infliction of harm to someone's person or property is quite easily a wrong if it's foreseeable. Harm complained about was not the value of the bottle of ginger beer, it was the physical harm/sickness that resulted from the drinking of it - economic loss recoverable under negligence though? We can trace negligence back to Aristotle: Causing economic harm doesn't hurt the overall welfare of society. We live in a competitive, capitalistic society - deliberate infliction of economic harm - this is to be expected. Once we open the door to economic losses being recoverable - where does it stop? Hedley Byrne v Heller and Partners: - Moves us away from physical act causing harm - Carelessly made statement - recognises the potential for liability - Bank says customer has good credit - within a couple of months, they weren't paying. - Negligently stated the level of risk This case recognised liability for economic loss. Since then, courts have been trying to provide a control mechanism to figure out when the claims for loss should stop. Concern was if we used Donohue, liability would be too broad. Courts have had to devise principles to limit the liability - duty of care acts as a filter. Anns v Merton London: - Novel duty that the courts have not had to deal with before - Two stage analysis where we don't have a recognised duty of care 1. Relationship of proximity (more elaborate than simple foreseeability of harm) 2. If there is proximity, we look for policy - what impact would this duty of care have on the community if we recognised it. First case to recognise liability for defective houses. Later courts changed their minds - no recovery for economic loss. Caparo Industries: Introduced a third limb. 3. Is it fair, just and reasonable to have a duty of care One of the problems of why negligence is so wide open is that it applies to all of society. How conservative or how liberal should judges be in determining the boundary scope of negligence? NZ has very liberal economic loss rules because we have personal injury cover under ACC. Structure of the Tort: 1. Harm being complained about Couch: Severe physical injuries when Bell shot her. I) personal injury ii) physical property damage iii) economic loss Couch: establishes what we need if we want to succeed in a trial for negligence. Establish duty of care related to harm. Breach of duty. Breach caused harm. 18th August: Palsgraf v Long Island Railway: - Had a package, stumbled as getting onto the train - Railway employee helped the passenger, package fell, exploded - contained fireworks - The explosion caused a set of scales to fall onto the plaintiff Did the railway employee owe a duty of care to Mrs Palsgraf? Conduct of the defendant - if it was a wrong in relation to the passenger, it was not a wrong to the plaintiff - nothing gave notice that the package had any kind of peril towards anyone on the platform. There has to be a duty to the plaintiff. Foreseeability - if there is no hazard apparent to the eye of the reasonable person, then an act which is innocent and harmless with reference to the plaintiff wouldn't take on the quality of a tort, simply because it took the form of a wrong to someone else. Plaintiff has to establish duty of care to herself. Diversity of interests - two different types of duty. Futitlity of the effort to build the plaintiff's right on the basis of a wrong to someone else. South Australia Asset Management Co: - Lending money - decided how much money to lend by taking into account the value of the properties - Got valuation reports - allegation is that the valuers overvalued these properties - Because of the negligence of the valuers, they made loans they would never have made, or they advanced far too much money. - Accepted that the valuers did not perform at the level of a reasonable valuer. If there was a duty owed to the plaintiff, it was breached. But was there a duty? Could the lenders rely upon the breach for the basis of their claim in negligence? CA said they had performed below the standards of the reasonable valuer, which caused the lending, so everything was recoverable. HL didn't like this: Lord Hoffman says what happened in the CA was far too simplistic. CM24[D] Refers to the CA and how they saw the wrong as triggering the recovery after that - said no reason why the law shouldn't shift onto the wrongdoer all of these consequences. We could have a rule of law that says once you've committed a wrong, all of the consequences fall upon you - but this is not the normal rule. Lord Hoffman says this is far too simplistic - these kinds of rules would be exceptional, and would need special policy justification to make the wrongdoer liable for everything. Normally limits liability to just those consequences attributable to that which makes the act wrongful. Lord Hoffman is saying we can owe a duty of care, and can say it's been breached, but we still need to think about whether that duty is owed to the people claiming they have been harmed. Remoteness is also important - foreseeability. Indeterminacy - need finite rules, don't want them to owe an indeterminate liability. Need to be able to identify a class of people - can't have a duty of care to the entire world. Have to identify to whom it's owed, then to the scope of the duty. How is the scope of the duty to be determined? If there is a statutory background to what the defendant is doing, the statute may determine the duty for us. May go even further and describe the duties owed. If we don't have a statute, we might have a contract telling us how we expect this person to act. Only harms caused by the breach of duty are recoverable. HL say that things caused by the market fluctuation can't be recovered. All that can be recovered are the amounts that the lenders can show they overlent by. Duty of Care: Assumption that a plaintiff can establish that they have been harmed. Also assuming that the defendant has breached the duty, if there is one. By themselves, they will not add up to negligence - we need a duty of care. Function of the duty of care is to create rules that limit liability. CM30 Acts or omissions in any moral code that we might censure, can not be treated in a practical world as giving rights to anyone to relief. Three reasons for controlling it in this way: 1. We want to avoid disproportionate liability 2. We want to avoid indeterminacy - as to the actual amount, as to the period of time for which they are liable (Limitations Act), as to the class of people who might claim. 3. The floodgates argument Cooke P did not like this - if there is a large class of people that might be harmed, we should not get rid of their right to claim - if a large class of people will be affected, this is exactly where they should be able to claim! Donohue v Stevenson: CM 30. Elaborate classification of duties. Lord Atkin's contribution is to do away with that approach. There is a very real concern that we shouldn't have benefits we haven't paid for, because of the impact on contract law. Winterbottom v Wright: - Someone who is driving a mail coach (bus) - Driving under contract to the postmaster general - He was also carrying passengers who had contracted with the postmaster general to be carried - Had a general obligation to keep his coach in good order, but he failed to do so. - Passenger thrown off and injured as a result of the coach being in bad condition Couldn't say he was owed a duty of care from the driver - Baron Olsen wouldn't accept any duty of care - can only recover from those who enter into the contract. If we go one step beyond that, why not go 50? (Floodgates argument). Heaven v Pender: - Working on a ship underneath a platform, was injured. MR Brett tries to come up with a more generic notion of duty. Basically his approach is that the drivers, when they are driving towards each other, anyone of ordinary sense would realise that if he failed to use ordinary care and skill, it could cause a collision. Everyone ought to have regard to the safety of others - any absence of reasonable care and skill will leave you to pay for the injuries. Donohue v Stevenson: Lord Atkin approves of Heaven v Pender. His approach is that you must take reasonable care to avoid acts or omissions that you can reasonably foresee are likely to injure your neighbour (those who are so closely and directly affected by your acts that you ought reasonably have them in contemplation.) 25th August: South Pacific: Cooke: Vulnerable because they had to accept this investigation if they wanted their insurance. Placed them in a situation that they were dependant on the investigators doing their job right - reliance. Richardson J: p307 CM56. Doesn't use 'vulnerability' or 'reliance', but he is looking at the relationship between the parties, trying to see who is simply proximate. Direct and close nexus between the defendant's negligence (if the def had been negligent), there would have been direct and close loss to the plaintiff. The insured was directly within the contemplation of the def investigator, when they conducted their investigation and reported to the insurer. The investigator must have known that an adverse report would be likely to lead to a denial of insurance - this would happen if they carelessly and wrongly attributed arson to the plaintiff. 'Vulnerability' is mainly because of the Rolls Royce case. Shift away from talking about 'reliance'. Can we expect this person to be looking after their own interests - if not, we can see them as being vulnerable. South Pacific - short of having their own investigator, the plaintiff couldn't do much. Even if they got their own investigator, they insurer didn't want it - so they were completely vulnerable. Sometimes it can be an issue of whether it's reasonable for the plaintiff to have relied on the defendant. General idea is if there is a specific purpose, relying on it for some other purpose is not appropriate - will not be reasonable. AG v Carter: - Certificate of seaworthiness for the purposes of maritime safety - Difficulty was that the plaintiff bought this ship with the certificate on it, and then found out that the ship was basically a rust bucket - the certificate was not accurate - The statutory purpose for issuing the certificate was maritime safety, not protecting the interests of buyers. Difficulty in seeing reliance if the alleged duty creates a conflict of duty. Reliance is the big factor to come out of South Pacific. Pg291 CM48, Cooke P says that the investigators are licensed under the Private Investigator's Act, and one of their duties is to carry out their investigations with reasonable care and skill, so that they can be disciplined by the registrars if they don't carry out their duties with reasonable care and skill. Close proximity based on reliance is underlined by the acceptance of Parliament under this Act, that the person investigated has a legitimate interest in the performance of the investigator. CoA thought unanimously inconsistent with existing law. P302 Cooke P talking about what the consequences would be of a poorly prepared report. Primary harm to plaintiff would be injury to reputation - what we would expect is that this report by the investigator, when it's reported to the insurance company, it would be covered by qualified privilege. Qualified privilege is defeated by malice, but not by proof of negligence. Cooke saying we can't let negligent damage to reputation become law, because it would completely undermine the law of defamation. Therefore we can't have this duty of care. When you come down to the financial implications for the plaintiff, they are out of pocket - breach of contract. They can simply sue the insurance company to recover it. They don't need the negligence remedy - if they had no other remedies, the court would have been more sympathetic. Richardson J CM56. Even if the insurance is turned down wrongly, still a contractual claim against the insurance company. It would be surprising if the insured did not have a remedy against the insurer for failing to take reasonable care in investigating. If they don't have an adequate remedy by reason of their contract, it's only because they didn't pay a high enough insurance premium. If we recognise a duty of care, this will be an incentive for investigators to use reasonable care when they investigate - promotes a high professional standard. Would be consistent with the policy goal to recognise a duty of care, but it is certainly not a strong enough policy factor to outweigh the concern with defamation law. One other very strong idea that comes through when we are trying to determine proximity. Didn't get talked about in South Pacific. The idea is the 'assumption of responsibility'. Has the defendant assumed any responsibility to the plaintiff? Normally this comes through as an ingredient in a negligent misrepresentation case. Assumption of Responsibility: Usually assume voluntary responsibility, but in reality this would hardly ever happen (unless in contract) At the heart of the requiremet is simply willing performance of task AG v Carter: Suggest voluntary act, but actually more about someone coming under responsibility - imposed responsibility If someone has responsibility for somehting they have seen, will probably be proximate and fair/just/reasonable, subject to policy factors. [26] in most cases there will not be any voluntary assumption, but will deem assumed responsibility when the def sees or ought to have seen that the plaintiff would rely on what was said. Defendant has three choices when they are asked to give advice or give a statement: 1. Say no 2. Proceed and give the advice or make the statement, without any qualification or disclaimer - normally will create a duty of care 3. Proceed, and say 'I will not take responsibility for it' - disclaim responsibility. Three mechanisms for disclaiming: (a) If the def is in a contract with the plaintiff, can put it in their contract by way of an exclusion clause (b) Even if no contract, can still make it clear to a plaintiff that they are not taking responsibility for what they say. E.g. Hedley Byrne - no problems with the bank. Letter said 'we give this opinion without responsibility of the bank or its offices' - became an effective disclaimer of responsibility. (c) Contract between A and B, C is giving advice to B on behalf of A, and in the AB contract, there is some sort of exclusion. Some cases are holding that the AB contract can also protect C. Classification of Types of Harm: - Personal injury - In NZ we have the ACC scheme. Two ways at least in which we can bypass the ACC scheme and obtain damages for personal injury - s317 prevents any action for personal injury in NZ. One clear situation where they can, is the historic sex abuse cases. Still accept some mental injury cases under negligence. Distinction between a primary victim and a secondary victim. Sivasubramanian v Yarnall: - Suffered PTSD after a car accident with her and her mother - s317 prevented recovery for her own personal injuries - Accepted that some of her mental injury would have flown from the death of her mother, could go to trial - secondary mental injury meant it was still the sort of harm that could be dealt with by negligence. Couch v AG: - Not bringing an action for personal injury, bringing a case for exemplary damages. September 8th: If the physical harm causes economic loss, if it's foreseeable, its as easily recoverable as the physical harm would be. In terms of an issue of proximity, since they were physically harmed, if they were that close as to be harmed, they must have had proximity. Mobil Hong Kong: - Ship owned by defendant, negligently moored - Ship came loose, damaged plaintiff's dock - CM6060[1] Lord Brandon says not pure economic loss but ordinary physical damage - p329, collisons, self evident that there will be a duty of care - physical proximity of particular vehicles to one another - Harbour such as Hong Kong, equally self evident that if they sail or moor negligently, harm will result. PC seems to be suggesting that where it is physical harm, there is no novel duty analysis, just foreseeability. Bishop Rock: - Ship surveyor, classification society, checking for seaworthiness - goes and surveys the ship and classifies the level of risk (whether fit to sail or not) - Ship had been damaged in a storm and had temporary repairs - Surveyor chekced, issued report, said safe to sail - Claim was by the owner of the cargo, not the ship owner HL did accept that it was foreseeable physical damage. Question was is that foreseeability sufficient to create a duty of care to the cargo owner. Majority didn't view it so simply. Difficulty with the CoA decision [GH] Savill J: Relationship between the parties must be such that its obvious that there will be a risk of harm. In most cases of direct infliction of physical loss it is self evident that a civilised system of law would find a duty. The majority wanted to look at the context, not fair and reasonable to impose a duty of care. Maritime law has a very intricate body of rules for things lost at sea - rules didn't specifically cater to classification societies. Stovin v Wise: - Council was roading authority - Dangerous corner - could have done repairs for very little money. - Council decided to cut it back but it wasn't their land, so they went to owners and asked them - but they took the matter no further. - Another accident occurred. - Sued council as roading authority for negligence. HL: Council responsible for failing to act. Lord Nicholls - council didn't cause this sort of danger. Can not be liable unless under a duty requiring it to act. There may be some situations where a duty to positively act is present, e.g. parent and child, teacher and pupil. Liability for careless acts follows from a choice made by a defendant. But if we are talking about omissions, we are depriving people of that choice. We don't all have the same resources. Important

Buy the full version of these notes or essay plans and more in our Tort Law Notes.