Duty of Care 3

Origins and Development 3

Donoghue v Stevenson [1932] AC 562 4

Facts 4

Issue 4

Rule 4

Analysis 4

Hedley Bryne & Co Ltd v Heller & Partners Ltd [1964] AC 465 6

Facts 6

Issue 6

Rule – Negligent Misstatement 6

Analysis 7

Home Office v Dorset Yacht Co. Ltd [1970] AC 1004 (HL) 9

Facts 9

Issue 9

Rule 9

Analysis 9

Redeveloping the duty of care test 11

Anns v Merton London Borough Council [1978] ACT 728 11

Facts 11

Issue 11

Rule – two stage inquiry 11

Caparo Industries Plc v Dickman and Others [1990] 2 AC 605 12

Facts 12

Issue 12

Rule: the three-fold test 12

Analysis 13

Result 13

South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282 14

Facts 14

Issue 14

Rule: assessing the duty of care in novel situations 14

Analysis 15

The status quo in New Zealand 17

Attorney-General v Carter [2003] 2 NZLR 160 17

Rule 17

Assumption of responsibility 17

The NZ approach to duty of care arising from negligent misstatements 18

Rolls-Royce New Zealand Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 19

Facts 19

Issue 19

Rule 19

Analysis 20

Result 20

Couch v Attorney-General [2008] 3 NZLR 725 21

Facts 21

Issue 21

Rule 21

Application 22

Elias CJ’s Dissent 22

North Shore City Council v Attorney General [2012] NZSC 49 23

Examining the duty of care analysis 25

Palsgraf v Long Island Railway Co, 248 N.Y. 339 (1928) 25

Application of the analysis (Categories) 26

Positive acts causing physical damage 26

Mobil Oil Hong Kong Ltd v Hong Kong United Dockyards Ltd [1991] 1 Lloyds LR 309 (PC) 26

Marc Rich & Co v Bishop Rock Ltd [1996] 1 AC 211 27

Omissions 28

Stovin v Wise [1996] AC 923 28

Mental Injury 30

van Soest v Residual Health Management Unit [2000] 1 NZLR 179 30

Misstatements 32

Carter Holt Harvey Ltd v Minister of Education [2015] NZCA 321 32

Economic Loss 35

Scott Group Ltd v McFarlane [1978] 1 NZLR 533 (NZCA) 35

Connell v Odlum [1993] 2 NZLR 257 37

Defective Buildings 39

Body Corporate 207624 v North Shore City Council (Spencer on Byron) [2013] 2 NZLR 297 39

Public Authorities 42

X (Minors) v Bedfordshire County Council [1995] 2 AC 633 42

Other Elements of Negligence 45

Standard of Care and Breach 45

Overseas Tankship Ltd v The Miller Steamship Co Pty Ltd (Wagon Mound (No 2) [1967] 617 45

Facts 45

Issue 45

Rule 45

Analysis 45

Goldman v Hargrave [1967] 1 AC 645 47

Facts 47

Issue 47

Rule 47

Analysis 48

Result 48

Bannerman, Brydone Folster & Co v Murray [1972] NZLR 411 49

Facts 49

Issue 49

Rule 49

Analysis 49

Causation and Damages 50

Wilson & Horton Ltd v Attorney-General [1997] 2NZLR 513 50

Facts 50

Issue 50

Rule 50

Analysis/Application 51

Duty of Care

Lecture 36: (11/08/20)

Four elements:

1. Duty of care

• The defendant owes the plaintiff a duty of care

2. Breach

• The defendant breaches their duty of care and were careless/unreasonable in doing so.

3. Causation

• The defendant’s breach then caused damage to the plaintiff

4. Damages

• Because of the breach, the plaintiff has suffered loss and incurred costs that they should not be liable for.

• If there are no costs incurred by the plaintiff, there is no claim for negligence.

Lecture 37: (14/08/20)

Origins and Development

Originally, negligence comes from 12^th to 14^th Century Trespass

• In the 12^th century, you could trespass if there was a direct and forcible interference with a person or land.

• In the 13^th century, two writs developed – a writ of trespass to the person and one of ‘trespass on the case’.

• In the 14^th century, there was a separation of trespass to the person, and ‘trespass on the case’ (like negligence).

Trespass to the person – assault, battery, wrongful imprisonment.

• There must be directness

• There must be fault – interference

• The plaintiff does not necessarily need to prove damages – strict liability.

Trespass on the case – nuisance and negligence

• Can be direct or indirect

• There can be liability without an intention to interfere

• The plaintiff must prove damages.

Donoghue v Stevenson [1932] AC 562

Facts

The plaintiff alleged that she visited a café with a friend and consumed a tumbler-full of ginger beer, poured from an opaque bottle, purchased by her friend from the owner of the café.

• A portion of the ginger beer was poured into a glass which was drunk by Donoghue – when her friend poured the remainder of the bottle, a decomposed snail floated out of the bottle.

• Donoghue claimed that she felt ill from this sight, complaining of abdominal pain/

• She was subsequently diagnosed with severe gastroenteritis (physical harm) and mental shock (psychiatric harm).

• The plaintiff sued the manufacturer of the ginger beer in tort.

Issue

The question before the House of Lords was whether if the allegations could be proved, the manufacturer owed any obligation of care to the consumer of their products:

• If there is a contractual basis between a consumer of a product and a manufacturer, negligence is not needed.

• Here, there was no contractual relationship between both parties, because Donoghue’s friend bought the ginger beer and it was not bought from the manufacturer directly.

• The minority held that there was no duty, as the manufacturer was only liable in contract to which the plaintiff is not a party of – privity of contract.

Rule

Lord Atkin for the majority recognised that the case was irrelevant to privity of contract as the plaintiff was not suing on the contract but for the defendant’s negligent conduct:

“a duty to take due care arises when a person or property of one was in such proximity to the person or property of another than, if due care was not taken, damage might be done by the one to the other.” – Lord Atkin at 581.

• An appropriate basis for imposing a legal duty to take care – proximity and foreseeability.

Analysis

General public sentiment dictates that a moral wrongdoer should pay for their carelessness which causes damage:

• “Love thy neighbour” translates to “you must not injure your neighbour” in law.

• If Mr. Stevenson had not taken reasonable care...

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