Duty of Care and Breach of Duty in Negligence Cases

Question 1

Issue

1. Whether Alex owed and breached his duty of care towards Betty and Jane’s Farm Pty Ltd.
2. Whether Alex owed and breached his duty of care towards Carly.
3. Whether Alex and Jane’s Farm Pty Ltd owed a duty of care to Deb.

Rule

Existence of Duty of Care

A duty of care is owed to anyone who can get affected by the actions of the defendant regardless of any contractual relationship. This was held in the case of Donoghue v Stevenson where the court stated that a person must not harm his neighbour and neighbour in this regard is any person who can directly or indirectly get affected by the negligence of another person. Similarly, it was also affirmed in the case of Grant v Australian Knitting Mills. However, it is also important that the harm suffered by a person due to the negligence of another person was reasonably foreseeable and there is sufficient connection between the harm and the breach of duty of care as held by Caparo Industries v Dickman. It held that the harm must be reasonably foreseeable, the relationship must not be too remote and it must be fair and reasonable to impose the duty of care. Finally, the case of Caltex Refineries Pty Ltd v Stavar which held that foreseeability, nature of harm, degree of control by the defendant, proximate relationship between the parties and degree of reliance are relevant in establishing duty of care.

Breach of Duty of care

In simple terms, the failure to exercise reasonable care towards others leads to breach of duty of care. As affirmed by Blyth v Birmingham Waterworks that the omission to do something which a reasonable person would not is negligence. If the defendant can foresee that there is risk and does not exercise reasonable care, it results to breach of duty. In this regard, section 5B(1) of the Civil Liability Act (CLA) states that a person is negligent if the risk was foreseeable, the risk was significant and a reasonable person in the position of the defendant would have taken reasonable care. With regard to the position in NSW, the case of Benic v NSW held that a risk of harm must be identified in relation to its foreseeability, probability and reasonableness. So where the risk of harm is high, it is most often foreseeable as held by Wyong Shire Council v Shirt. The significance of risk can also be determined based on the obviousness of the risk, likelihood of the risk and seriousness of the risk based on the decision of Rail Corporation NSW v Donald. This also comes under section 5B(2) of the CLA which takes into account the probability, seriousness of harm and burden of taking precaution.

Damage and Remoteness

A person need to suffer damages in order to bring a claim of negligence. Harm or damage under section 5 in part 1A of the CLA means personal injury or death, damage to properties and economic loss. In this regard, the decision of Overseas Tankship Ltd v Morts Dock and Engineering (The Wagon Mound 1) held that foreseeability of damage is sufficient. This is because a reasonable in such situation would be able to understand the gravity of the risk and hence would take reasonable precautionss. Lastly, the decision of Hughes v Lord Advocate held that what exact type of injury the plaintiff suffered is not a factor since the precise injury cannot be foreseeable, rather a general type of injury must be foreseeable for a reasonable person. In simple terms, the damage must arise due to the failure to take reasonable care.

Physical Harm and Psychiatric Harm

Damage is necessary to bring a claim where it can be shown that the risk led to physical as well as psychiatric harm. The decision of Tame v NSW showed that breach of duty of care led to psychiatric damages for which compensation can be claimed. Similar instance can be seem from Annetts v Australians Stations Pty Ltd. The scope for such harm can also be found under section 27 of the CLA which is subsequently affirmed by section 32. If the nature of the harm is foreseeable, a person owes a duty of care to not cause mental harm. However, there are limitations imposed by section 30 which states that there must be proximate relationship. The plaintiff is not entitled to claim damages unless the plaintiff witnessed the victim and the scenario or the plaintiff must be a close family member of the victim.

Vicarious Liabiliy and Defence

An employer is liable for the wrongful acts of his employees. This is what vicarious liability means when a person commits a wrong imposing liability on another person. An employer will be liable for the tortious wrongdoings of the employees. If the employer has sufficient control over the employee and has authority to give directions, vicarious liability can be imposed. Such an example can be seen from the decision of Hollis v Vabu. As far as the defence is concerned, it can be said that contributory negligence and voluntary assumption of risk can be claimed. As per section 5R of the CLA, there must be causal connection and the plaintiff must contribute towards the injury as also affirmed by Froom v Butcher. This reduces the liability of the defendant. On the other hand, as held by Reeves v Commissioner of Police, voluntary assumption of risk is a complete defence since a person cannot complain of the consequences of his own choices and being aware of the risk involved. Lastly, in case of non-delegable duty, the employer will be liable for negligence of another person as also affirmed by section 5Q(1) of the CLA. The scope of non-delegable duties under common law can also be found from Burnie Port Authority v General Jones where the court held the employer liable even for the wrongful conduct of an independent contractor.  

Application

Issue 1

Based on the facts it can be seen that Alex was given the responsibility to fix the quadbike. In such a situation, Alex should have ensured that the quadbike is fixed properly which otherwise would pose risk to others. It means that if Alex fails to repair the quadbike, it poses foreseeable risk to others. Hence, it is reasonably foreseeable for Alex that his failure to fix the quadbike would put others at risk. The risk was reasonably foreseeable and therefore, Alex owed a duty of care. As per Caltex Refineries Pty Ltd v Stavar, the risk was significant, the risk of harm was serious, and Alex had sufficient control over the situation. Most importantly, there was a direct causal connection between the harm suffered by Betty and the breach of duty by Alex. It means that if Alex was not negligent in fixing the quadbike, Betty would not have suffered the damage. This establishes the but for test based on which Alex can be found liable. However, Jane’s Farm pty ltd would be liable in this regard since Alex is an employee which makes Jane’s Farm vicariously liable for the wrongdoings of Alex. Further, Alex breached his duty of care since he failed to take reasonable care which led to damages being suffered by Betty. There is no defence that can be applied in this regard for Alex.

Issue 2

As far as the duty towards Carly is concerned, it can be said that she was a direct witness of the harm which led Carly to suffer psychiatric damage. As provided by section 30 of CLA, that a plaintiff is entitled to damages for mental harm when the plaintiff was an witness of the scene. Carly was the direct witness which had significant impact on her mental health even though there was proximate relation between Carly and Betty. Also, with regard to causal connection, it can be said that Carly would not have suffered the mental harm if Alex was not negligent. There was sufficient causal link between the negligence of Alex and harm suffered by Carly. Hence, Alex owed a duty of care to Carly as well which means that Jane’s Farm owed a duty of care to Carly which was breached leading to mental harm.

Issue 3

Since Deb is close friend of Betty, he also suffered mental injury, however, there is no proximate relationship in this regard. The relationship between Deb and Betty does not come under the purview of section 30 of CLA. Hence, a duty of care is not owed to Deb in this regard.

Conclusion

To conclude, it can be said that Alex breach its duty of care towards Betty and Carly. However, no duty is owed to Deb. Hence, Carly and Betty should be able to claim damages from Jane’s Farm due to vicarious liability. Jane’s Farm would be liable to pay damages for the death of Betty. Carly would be able to claim damages for mental injury or psychiatric harm suffered. The likelihood of success for Betty and Carly are high based on the application of law to the given scenario.

Question 2

Issues

1. Whether KneeKing Pty Ltd owed a duty of care to Adam and whether there was breach of such duty.
2. Whether Dr Sleepy owed a duty of care to Ben which was breached causing Ben serious damages.

Rule

Obvious risk leading to economic loss

Economic loss caused by negligence also entitles the affected party to seek compensation. Economic loss in this regard includes, loss of wages, medical expenses and any other expenses related to the injury. These factors were also previously affirmed in the case of Caltex Oil v Dredge ‘Willemstad’ where the court imposed a duty of care due to the foreseeability of economic loss, the relationship between the parties and vulnerability of the plaintiff. As defined by section 5F, obvious risk refer to risks which should be obvious to any reasonable person. In such a situation, the scope of duty of care increases and any breach entitles the affected party to claim compensation.

Professsional Duty of Care

As per the decision of Romeo v Conservation Commission, it can be said that a person under a general duty to take reasonable steps to prevent harm to others can also extent to assessing the danger posed by the act. Moreover, there is a higher standard of care expected from professionals such as doctors as held by Rogers v Whitaker which held that a doctor with certain skill and expertise owes a higher standard of care because of the special skill possessed. Such standard of care can also be found under section 5O of the CLA.

Application

Issue 1

Based on the given factual situation, it can identified that Adam is the plaintiff and Kneeking Pty Ltd is the defendant in this situation. There is no doubt that Kneeking Pty Ltd owed a duty of care to Adam since Adam is availing a medical service and any defect in the service or product would put Adam at risk. Any failure on the part of KneeKing and damages resulting out of it is reasonably foreseeable. Most importantly, it was foreseeable that the metals used in the device could lead to gangrene posing further threat to Adam. Kneeking owed a duty to Adam which was breached causing foreseeable damages to Adam. Kneeking had the obligation to take reasonable care towards Adam. Moreover, it is obvious that the failure of Kneeking would pose serious and foreseeable threat to Adam. In this regard, Adam suffered economic loss since the removal surgery went smooth and he was not physically harmed. Since, Adam incurred additional medical expenses and lost income, he suffered economic loss due to the act of Kneeking. KneeKing should have tested the device properly before using the same. Such an economic loss is also foreseeable for a reasonable person in the position of KneeKing. However, Kneeking cannot be held liable for the rare autoimmune condition developed by Adam simply because it was not foreseeable for a reasonable person. Hence, Adam can claim damages for the lost income and additional medical expenses but not for the rare autoimmune condition.

Issue 2

Dr Sleepy being a qualified medical professional owes a higher standard of care. As affirmed by Rogers v Whitaker, Dr Sleepy is responsible to ensure that his actions do not harm his patients. Since Dr Sleepy has certain skill and expertise, such a higher standard of care can be reasonably expected. However, there is no doubt that Dr Sleepy failed his duty of care towards Ben since the surgery was completely wrong and not aligned with what Ben expected. This is a physical injury caused by the negligence of Dr Sleepy. In this regard, the harm suffered by Ben due to the failure of Dr Sleepy was reasonably foreseeble. Also Ben would not have suffered such a harm if it was not for the negligence of Dr Sleepy. Most importantly, section 5O imposes this higher standard of care on Dr Sleepy who is expected to act in a way accepted by peers and standard of practice.

Conclusion

To conclude, it can be said that KneeKing owed a duty of care to Adam which was breached to some extent. Kneeking owed a duty to Adam only for the foreseeable harm. It means that Adam can only seek compensation for the economic loss suffered due to additional medical expense and loss of wages. However, Adam cannot claim compensation for the rare autoimmune condition he developed after the surgery. On the other hand, Ben is entitled to compensation from Dr Sleepy who failed his professional standard of care was adversly negligent toward his actions. The scope of his actions and failure comes under the purview of the CLA and would be liable for pay damages to Ben. Lastly, both Adam and Ben have high chances of success in their respective claims.

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