Negligence Duty of Care PDF

THE TORT OF NEGLIGENCE 10.2 DUTY OF CARE  1. ESTABLISHING A DUTY OF CARE There are three factors: Firstly, it must have been reasonably foreseeable to a person in the position of the defendant that injury or harm of some kind would happen to someone as a result of the kind of c...

THE TORT OF NEGLIGENCE 10.2 DUTY OF CARE  1. ESTABLISHING A DUTY OF CARE There are three factors: Firstly, it must have been reasonably foreseeable to a person in the position of the defendant that injury or harm of some kind would happen to someone as a result of the kind of conduct engaged in by the defendant. Secondly, the plaintiff must be a person or a member of a class of persons who it was foreseeable might suffer harm as a result of the defendant’s conduct. Waverly Council v Ferreira NSWCA 418 Thirdly, a recognised 'duty situation or relationship' must have existed in which the defendant was required to prevent the foreseeable harm to the plaintiff. Continued…  DUTY SITUATIONS For example, a duty to prevent foreseeable harm has been recognised by the courts as arising between: Occupiers of property and persons entering the property Statutory authorities and the public: Waverly Council v Ferreira NSWCA 418 Road users and other persons on the road Persons in a fiduciary relationship, e.g. principals and agents Persons in a contractual relationship Manufacturers and consumers: Donoghue v Stevenson AC 562. Continued…  DUTY SITUATIONS (CONT) In more unusual types of case, the courts weigh up various factors which may point to the existence of a duty of care, for example: considerations of policy and fairness; the extent to which the harm was foreseeable; the potential number of similar cases that might arise; and the likelihood of creating an unreasonable commercial burden by recognising a duty of care.  SITUATIONS CAUSING PURELY ECONOMIC LOSS In cases causing purely economic loss, a situation must be shown to exist in which the plaintiff was vulnerable, dependent or powerless, and the defendant in a position of control or power. Perre v Apand HCA 36; (1999) 198 CLR 180 Woolcock Street Investments Pty Ltd v CDG Pty Ltd HCA 16 When conduct that causes purely economic loss consists of giving wrong information or advice, a duty of care only exists if: the speaker ought to have realised in the circumstances that they were being relied on to give accurate information or advice on the basis of which the other party might decide to act; and it was reasonable for the other party to act on that information or advice given. Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225.