NEGLIGENCE

Issue: The legal issue is whether P can sue D for negligence

Rule: To successfully claim negligence, plaintiff must prove ALL FOUR ELEMENTS:
(1) Duty of care, (2) Breach of duty of care, (3) Causation, (4) Remoteness
Specific to injury/damage/losses
Donoghue v. Stevenson
Lord Atkins Neighbour Test

Manufacturer owes DOC to end user

Neighbour

Reasonable Foreseeability: The type or types of people you should reasonably

foresee might be injured by the Defendants negligence or carelessness are
neighbours and a Duty of Care is owed to them.
RULE 1: Someone can sue someone else for Negligence even if they do not have
a contract with them. RULE 2: A manufacturer owes a DOC to its customers to use
reasonable care to make sure its products are reasonably safe as it is reasonably
foreseeable that if a manufacturer (like Stevenson) does not keep its factory clean
and lets dead snails get into its bottles of soda, the type of people who might by
injured by this are the manufacturers customers (like Ms. Donoghue).
Neighbours: people that are so closely and directly affect by our action(s) or
omission(s) that, as reasonable persons, we should think about those people
when we are about to act or to not act.
1. DUTY OF CARE The legal issue is whether D owed P a duty of care (DOC) for ____.
*PHYSICAL INJURIES*:
Rule: D owed a DOC for physical injury (may be damage to property, belongings
or bodily harm) to P, if Ds action was reasonably foreseeable (RF) to harm P and
if P was Ds neighbour at the time of the accident (Donoghue v. Stevenson)
Apply: Here, when D carelessly does____, it was RF that harm to P could

result because____. (Analyse give reasons) Neighbour Test (Lord Atkin)

Also, D was a neighbour because Ds action was closely and directly
affected P so D owed a DOC to P.
If theres 3rd party FAILURE TO ACT TO PREVENT HARM (2 factors)
The parties are in relationship of reliance and dependence or
The defendant has control over the person and property causing the harm
(Someone does not usually owe a Duty of Care to control the actions of someone
else especially not for criminal acts.)
Australian Safeway Store v. Zaluzna
Modbury Triangle Shopping Centre v.
Anzil
Club Italia v. Ritchie

DOC extended to occupiers of property

No DOC owed as no control over 3rd
party unless high certainty" happens
DOC owed as Club Italia knew problem

*PURELY PSYCHOLOGICAL INJURIES* - No physical injuries or property damage AT ALL.

Injuries are ONLY psychological or mental

Rule: The rule is Neighbour test which says that the D owed a DOC for
psychological injury to the P if (1) Ds action was RF to cause serious
psychological psychological/mental injury/illness due to Ds careless
act/omission and (2) P has good evidence of serious mental illness.
(1)RF: is determined by closeness of the relationship between the parties affected. (E.g.
close family/friend relationship). (2)Good Evidence of Serious Mental Illness: Diagnosis from
Doctors of Depression, Schizophrenia, Shock, Delusions, etc. OR other good evidence that
because of the Defendants negligence, the Plaintiff could not go to work for a period of
time, could not eat/lost weight, tried to kill himself/herself, etc.
Jaensch v.
RF to J that if he drove carelessly & caused accident, people with a close
Coffey
relationship to Mr. Coffey (family members, close friends, etc.) might
suffer psychological/mental injuries as a result of the accident.
Neighbour
Coffeys doctor said she suffered from serious anxiety/stress/depression
Good evidence of serious mental illness.
Annetts v.
Parents suffered serious anxiety/depression after son died working as
Australian
cowboy. Cattle farm owed DOC for pure psychological injury because of
Stations
close r/s with son. It was RS that if the farms negligence killed their son,
Pty. Ltd
the parents would have serious mental injuries and had additional good
evidence (their doctors statement) of their serious mental illnesses.

Apply: Here, it was RF that Ds action could do harm to (people) such as

victim. It was also RF that if victim was____, his/her close relatives such as
P would suffer serious psychological injury.
Also, P has good evidence of his/her serious mental illness (list evidence)
[Diagnosed by a doctor OR Other good evidence of serious mental illness]
Conclusion: Therefore, D owed/did not owe P a DOC for pure psychological
injury.
*PURE ECONOMIC LOSS* - ONLY Damaged Economically (Losing Money).
Rule & Apply: Usually, a defendant has no Duty of Care for pure economic loss.
We have to consider if P can prove the four factors (Perre v. Apand):
Perre v.
Apand

Caltex Oil
v. The
Dredge
Willemstad

Firstly, Loss to Perre was reasonably foreseeable. It was reasonably

foreseeable that if Apand sold diseased potato seeds, farmers like Perre
would not be able to sell their potatoes. Secondly, by selling diseased
potato seeds, Apand was not protecting its business interest. Thirdly,
Perre was totally vulnerable on Apand acting responsibly and not selling
diseased potato seeds could not protect or stop his neighbour from
having diseased seeds. Finally, Apand was aware or should have been
aware that potato farmers like Perre who were close to Apands
customers were vulnerable to Apand. Duty of Care for Pure Economic
Loss Owed.
Court applied the 4 factors. Most importantly, the dredge boat operator
knew specifically that pipeline was there and knew specifically that Caltex
Oil relied on pipeline. This meant that the Defendant knew that the
Plaintiff was vulnerable and could not protect itself. Duty of Care Owed.

(1) Reasonable Foreseeability (Neighbour Test): At the time of the Defendants

negligence, a reasonable person could have foreseen that a type of person like
the Plaintiff might be injured economically by the Defendants Negligence (Here,
it was RF, before the accident, that Ds careless act could cause economic loss to
a type of person like P because_____. (Cause severe damage to property and then
cause economic loss to adjacent properties due to repairs, rebuilding etc.) Thus,
D was more/less likely to owe a DOC to [P name].)
(2) Legitimate Business Interest: Were the acts of omissions the Defendant is
accused of done to protect a legitimate business interest of the Defendant? (Here,
D had (no) legitimate business interest in (Ds action), D did it due to_____. Thus,
D was more/less likely to owe a DOC to [P name]. (Notice: important factor, if D
was protecting business interest, no DOC owed.)
(3) Vulnerability of Plaintiff: Was there any way for the Plaintiffs to protect
themselves from the Defendants Negligence? (1) (2) selected according to case
(1) Vulnerable: There was no way that P could protect her/himself in this situation
because he/she could not control (Ds action). Thus, D was more likely to owe P
a DOC.
(2) NOT Vulnerable: P is NOT vulnerable because he/she could have: (a) and/or (b)
(a) Back-up plans i.e. an alternative supplier/customer/etc.
(b) Purchased business interruption insurance which would compensate the
plaintiffs for any lost profits due to an interruption in business.
Thus, D was less likely to owe P a DOC.
(4) Defendants Knowledge of the Plaintiffs Vulnerability: Is there evidence that
the Defendant knew or reasonably should have known that the Plaintiffs were
vulnerable to the Defendant and could not protect themselves? (Here, D was
aware or should have been aware- that____. Thus, D was more/less likely to
owe P a DOC.)
Conclusion: In sum, (numbers) of four (Perre v. Apand) factors favour the
existence of a DOC. Therefore, D owed/did not owe P a DOC for pure economic
loss. *REMEMBER THESE ARE FACTORS NOT ELEMENTS* *If the Plaintiff suffered both
physical injuries and economic loss, then apply the ordinary Neighbour Test NOT the
Perre v. Apand factors. This is because if the Plaintiff suffered physical injuries, the court
will more likely believe that the he also suffered economic loss and does not have to
consider additional factors.

*NEGLIGENT MISTATEMENT/NEGLIGENT MISREPRESENTATION* - Advice or

information given and relied upon that causes loss (includes written and spoken).

Issue: the legal issue here is whether D owes a duty to take reasonable care in
providing services to their clients. There has to be a special relationship.
Rule: To prove that that a defendant (D) owed a DOC to a plaintiff (P) for negligent
misstatement, we must prove all FOUR MLC v. Evatt elements:
Mutual
Life
Citizens
Assurance
Co. v.
Evatt
Tepko Pty
v. Water
Board

Whenever a person gives information or advice to another person upon a

serious matter in circumstances where the speaker realises, or ought to
realise, that he is being trusted to give the best of his information or advice
as a basis for action on the part of the other party and it is reasonable in
the circumstances for the other party to act on the information or advice,
the speaker [owes] a duty to exercise reasonable care in [providing] that
information or advice.
Water board did not realized the recipient intended to act on the
information and it was not reasonable for Tepko to rely on such a rough
estimate. They should have done an independent estimate of their own.
No Duty of Care Owed.

Apply:
(1) The speaker realises they are being trusted to give information which they
are believed to know. This element is (not) satisfied, because_____.
(2) The subject of the advice is of a business or serious nature. This is dealing
with_____ so it is a _____(business matter).
(3) The speaker realises that the recipient intends to act on the advice. This
element appears to be satisfied because P met/speak with Dsolely in connection
with its decision to_____.
(4) It is reasonable in the circumstance for the recipient to accept and rely on
the advice (reasonable reliance).This element is (not) satisfied, because_____
Conclusion: Therefore, D owed/did not owe P a DOC for negligent misstatement.
*Standard of Care for Negligent Misstatement: The standard of care the community
reasonably expects from a person with the same professional qualifications. However, since
the standard of care will still vary depending on the specific circumstances, we MUST STILL
APPLY THE 4 ROMEO FACTORS.

2. BREACH OF DUTY OF CARE/FAILURE TO MEET STANDARD OF CARE

Even if the defendant did not owe a Duty of Care based on the facts in the case, you MUST
still complete the entire Negligence Analysis Based on the above, the Defendant does not
owe the Plaintiff a Duty of Care. However, if the court were to decide otherwise, the court
would next consider whether the Defendant met the required Standard of Care
Romeo v.
Court held that even a reasonable, ordinarily careful (ROC) parks
Conservation
commission would not have built a high fence at the edge of the cliff.
Commission
Conservation Commission had met the required standard of care.
Although the magnitude of risk was high (someone could have died), the
probability of injury was low (OBVIOUS DANGER). Also, it was expensive
and difficult to build a fence along the cliff. Furthermore, the Defendant
had many other conflicting priorities as they managed many parks.
ODwyer v.
Court held that it did not matter that the whole champagne industry
Leo Buring
used the plastic and metal top. The issue was whether a ROC
Pty. Ltd.
Champagne manufacturer used that type of top. The gravity of
harm/magnitude of risk was medium someone could have been
injured/blinded and the risk of injury was very low. However, it would
be very easy and cheap to eliminate the risk by placing a warning
label on the bottle. Other conflicting priorities was not an issue here as
the manufacturers priority was to make its products safe. Leo Buring
DID NOT meet the required SOC.

Issue: The legal issue here is whether D failed to meet the required standard of
care.
Rule: The law says that a D breached a duty of care if that person failed to act as
a reasonable, ordinary, careful person (ROCP) would in the same situation. We
analyse the four Romeo factors to tell how a ROCP should act:
(1) The magnitude of the risk: What was the worst thing could happen? And how
many people would be affected? Here, the magnitude of the risk was high/low.
Ds (action) would have caused (list 2 or 3) because _____. Also, many people
would be affected because_____. [Bigger risk, higher SOC]
(2) The probability of the risk: How likely was Ds conduct to cause harm? Here,
the probability of the risk was high/low because_____. [More likely, higher SOC]
(3) The difficulty and expense of eliminating the risk: Could the defendant
prevent the careless act? And how easy or cheap would it have been to eliminate
the risk? Here _____. [Easier/cheaper, higher SOC]
(4) Other conflicting priorities: Did D have other conflicting priorities that
prevented it from eliminating the risk? Did D have a good reason to do the risky
act? Here _____. [More conflicting priorities, lower SOC]
Conclusion: Knowing all the damage might be caused, a reasonable, ordinary,
careful (company/accountant/etc.) should have_____. Therefore, D breached a
DOC to P.
3. CAUSATION OF ACTUAL DAMAGE, INJURY OR LOSS
Issue: The legal issue is whether D caused actual damage, injury or loss to P.
Rule: The law says that the D caused actual damage, injury, loss to the P if the P
could list all actual damage, injury, loss that were caused by the careless act or
omission of D and prove the but-for test.
March v.
Stramare

Court held that Stramares parking of the truck in the middle of the road was
negligent, as it was a continuing cause of the accident. But for Test: As
far as the courts could tell, if the truck was not on the road, March would
have continued on the road without being injured. But-For Test proven
and Causation Proven. March however, who was drunk, was also
CONTRIBUTORILY NEGLIGENT (DEFENCE).

Apply:
A: Actual damage, injury or loss: List the damage: Physical (people or property),
Psychological, Economic loss.
B: But forTest: If we could go back in time and take away the defendants action
(or failure to act), would the plaintiff have still been damaged anyway?
Conclusion: In sum, two factors are satisfied so the causation is established.
Therefore, P can prove that D caused all of Ps damages.
4. REMOTENESS OR REASONABLE FORESEEABILITY OF THE PLAINTIFFS ACTUAL
DAMAGE, INJURY OR LOSS Plaintiff must prove that his damage/injury/loss was
REASONABLY FORSEEABLE and NOT TOO REMOTE specific type of
damages/injuries/losses. If a reasonable person should have been able to forsee those
specific types of damages, then those damages/injuries/losses are foreseeable and not too
remote. The Defendant would therefore be responsible for those damages.

Issue: The legal issue is whether the types of damages P suffered were not too
remote at the time of the accident.
Rule: The rule is the plaintiffs specific damages were not too remote if the
plaintiff could prove that these damages were RF by the defendant at the time of
the accident.
Apply: Here, Ps ___ (physical/psychological injuries, medical bills, economic loss,
etc.) were RF by D at the time of the accident because _____.
However, Ps ___ (being robbed, falling into a hole, etc.) was not RF because that
is not something one expects to result from_____ (i.e. a car accident). Thus, it was
too remote and P cannot recover from that.
Conclusion: Therefore, Ps _____ were RF by D but Ps _____ was too remote.
5. DEFENCES CONTRIBUTORY NEGLIGENCE Did any Negligence on the part of the
Plaintiff contribute to the Plaintiffs injury? *Depend if necessary, if not, leave this step*
If the Plaintiff was also Negligent (did something a reasonable person would not have done),
and the Plaintiffs own Negligence contributed (was also a cause of) the Plaintiffs damage,
injury, or loss, then the Defendant may argue the Defence of Contributory Negligence. *The
Court will apportion or divide up the liability for the Plaintiffs damage, injury, or loss
between the Defendant and the Plaintiff as they deem fit.

Issue: The legal issue is whether P can be proved for contributory negligence.
Rule: The plaintiff (P) can be proved for contributory negligence if the defendant
could prove two things:
The P was also negligent at the time of the accident.
Ps negligence contributed to Ps damage.
Apply: Here, P was also negligent because she failed to act as a reasonable,
ordinary, careful person (ROCP) would do. A ROCP in this situation would
not_____.
Also, Ps negligence contributed to her injury because if P had (not) done that, he
would not have had_____.
Case: Therefore, the court will divide up liability between the P and D, considering
the case of March v. Stramare/
6. MONEY DAMAGES Here were considering how much money the court will make the
Defendant pay the Plaintiff for the Plaintiffs actual damage, injury or loss.THE COURT TRIES
TO MAKE THE DEFENDANT PAY THE PLAINTIFF BACK THE AMOUNT OF MONEY DAMAGES
THAT WOULD PUT THE PLAINTIFF BACK INTO THE SAME POSITION AS IF HE HAD NOT BEEN
INJURED BY THE DEFENDANTS NEGLIGENCE. TYPES OF MONEY DAMAGES: Medical
Expenses (Hospitalisation/Doctors Fees), Lost Income (Unable to work for a certain period of
time), Property Damage (cost of repairing or replacing), Pain and Suffering, Loss of
Enjoyment of Life, Emotional Distress, Lost Profits (if business is shut down for a period of
time).

P can successfully sue D for negligence for everything except for_____ (stolen
money, lost purse, etc.). A court would award his/her _____ (medical bills, lost
income, compensation for pain and suffering, etc.). Supposing P is found to be
___% at fault, he/she will only recover____ (money) due to his/her contributory
negligence.
7. VICARIOUS LIABILITY One person is responsible for the negligence of another person
due to the legal relationship between them. (Usually employer/employee context due to the
legal relationship that exists between the employer and its employee. The employer is
reponsible for the negligence of his employee if the employees negligence occurred within
the scope of the employees employment. The Plaintiff must prove that at the time the
negligence occurred, the employee was within the scope of his employment (the process
of doing their official job for their employer), and not on a floric or detour of their own.
FACTORS TO CONSIDER: At the time the employees negligence occurred, was the employee:
On the Clock doing his job and during working hours?; At His Place of Work or out on
an official errand/task related to his work?; Appearing to Be In the Process of Doing His Job
wearing his company uniform, driving a company vehicle?; Doing/Performing An Act Which
Was Part of His Job Duties?
Deatons
Although the employee was on the clock and wearing a uniform, he did an
vs. Flew
intentional act of throwing a glass at a customers face which was
unconnected to his employment so therefore the employer was not
vicariously liable since the employee was not within the scope of his
employment.
*Vicarious liability only applies if the employer is being sued for its employees negligence. If
the Plaintiff is only suing the employee, we do not need to consider vicarious liability.
**First need to consider whether the employee was negligent using the ordinary analysis.
If the employee was not negligent, then there is no neglience to be vicariously liable for.

SKELETON FOR NEGLIGENCE QUESTION

Define negligence: when a person performs a task carelessly, he is
said to be negligent.
Say 3 essential elements to establish negligence: DOC, BOD,
resulting damage
Say FF, proximity and policy are used to determine DOC
BOD
Show that the resulting damage is a result of defendants
negligence
State the defenses the defendant can use
Say it is contributory negligence if both party are a bit careless
If got another victim, go back to FF, proximity, policy

1. Outline the elements necessary to prove to succeed in the tort of

negligence?
DOC, Breach of DOC, resulting in damage not too remote.
2. How do we test whether one person owes DOC?
- Proximity between parties
If yes, neighbour principle
- Legal relationship
If no, apply RF test (can actions be foreseen to
- DOC established?
cause harm?)

Bolton v. Stone
Hackshaw v. Shaw
Paris v. Stepney
Borough Council
Latimer v. AEC Ltd
Mercer v Tramways
Comer
Watt v.
Hertfordshire
County Council
Wrong Act 1958
(Vic) s26

March v. Stramare
Wagon Mound
Sullivan v. Moody

Jaensch v. Coffey

Century Insurance
Co Ltd v. Northern
Ireland Road
Transport

Useful Cases
Breach of Duty of Care
The probability that the harm would occur if care was
not taken
Occupier should not deliberately injure trespasser
The likely seriousness of the harm
The burden of taking precautions to avoid the risk of
harm
Common Practice
The social utility of the activity that creates the risk of
harm
Contributory Negligence
Damages are reduced to the extent the court thinks
just & equitable having regard to the plaintiffs share
in the responsibility for the damage. E.g.
drugged/intoxicate OR engaged in an illegal act
Aspects of Damage
Damage suffered by plaintiff must be caused by the
defendant. Use but for test
Damage must not be too remote. Hence, only
damage that is reasonably foreseeable is recoverable
The fact that it is foreseeable that a careless act on
the part of one person may cause harm to another
does not mean the first is subject to a legal liability
(Proximity involves) notions of nearness or closeness
and embraces physical proximity (in the sense of
space and time), circumstantial proximity such as an
overriding relationship of employer and employee or
of a professional man and his client, and causal
proximity in the sense of the closeness or directness
of the relationship between the particular act or cause
of action and the injury sustained.
Vicarious liability