LAW10014 - TORTS 1 - WEEK 3 PART I: INTRODUCTION TO NEGLIGENCE: DUTY OF CARE Table of Contents LAW10014 - TORTS 1 - WEEK 3. 1 PART I: INTRODUCTION TO NEGLIGENCE: DUTY OF CARE 1 Chapter Objectives. 2 Elements of the tort of negligence. 2 Elements of the tort of negligence [expanded] 2 Donoghue v Stevenson [1932] AC 562. 3 Lord Atkin's judgment: 4 Donoghue v Stevenson (Dissenting Judgments). 5 PART II: THE PRINCIPLES OF ESTABLISHING A DUTY OF CARE 5 The principles of establishing a Duty of Care. 5 Established categories where a Duty of Care is owed: 5 Physical Injury 6 Case example: Caterson v Commissioner for Railways (1973) 128 CLR 99: 6 Beyond Reasonable Foreseeability. 7 Proximity. 7 Salient Features. 8 Policy Considerations. 8
Chapter Objectives The chapter (pp 185-199) explains: First element of negligence: Duty of Care . The meaning and role of the duty of care in negligence; and · The principles for establishing a Duty of Care Historical Content of Duty of Care - Case of Donoghue Elements of the tort of negligence · To succeed in a claim of negligence, a plaintiff will have to prove 3 elements: 1) That the defendant owed the plaintiff a duty of care; (This Week) 2) That the defendant breached that duty of care; and 3) That the defendant's breach caused the plaintiff actual damage which is not too remote from the breach (causation and remoteness) (Case: Jaensch v Coffey (1984) 155 CLR 549) Elements of the tort of negligence [expanded] 1) Duty of Care: . Where a duty arises as a matter of law (question of reasonable foreseeability) o Easy to establish where D causes harm of a physical nature to P . Whether a duty arises on the actual facts on the case Example: A driver of a car who owes a duty of care to persons that might be affected by their lack of care in driving. · The content of duty is already present before the act negligence takes place . Duty of the facts is determined retrospectively and need to look back at what actually happened considering the circumstances of the person that was injured falls into the category of the typical road user to whom the duty of care is owed in the matter of law. 2) Breach: · Whether D's response to a foreseeable risk was reasonable o Has D met the requisite standard of care? o Negligence calculus " The court will balance degree and seriousness and the likelihood of risk against the cost or the difficulty of moving the risk as well as loss of public utility 3) Damage: · 3.1 Causation:
o Whether the harm to P would have occurred in the absence of D's breach (question of fact) o Need to establish a clear link between the breach and the loss or damage sustained o There can be multiple causes linked to P's harm. If P was partly to blame for the damage, contributory negligence may