Transcript for:
Negligence and Duty of Care Overview

hello everyone and welcome to module two in this video I'm going to be talking about negligence I will provide an overview of negligence and the duty of care in the in the previous video which where you know I provided an overview of ports I had emphasized that a lot of the thoughts actions are actually based on negligence negligence of the part of a particular defendant and our focus in this particular video is to talk about uh what negligence means and more importantly we will talk about duty of care which which is one of the Essential Elements prior to anyone being able to claim that there is an action that could be founded on negligence so as we will see later on uh there are three key elements of a negligence action in tort one is that there has to be a duty of care second there will be a a need to establish that there is a breach of the gdfk which then leads to damage upon a particular plaintiff we will see however that the issue of Duty of care is a bit complex and is a bit vexing uh mainly because when you think about the thought of negligence even if it could be established that a person has been negligent and it could also be established that as a result of a person's negligent action or a mission there has been harm suffered by a plaintiff those two elements as we see the presence of those two elements as we will see will not be sufficient to found an action on tour or the thought of negligence it also has to be established that the defendant owed a duty of care to ensure that his his or her actions do not lead to to harm or injury upon the plaintiff and so that's what we will we will be examining uh in this particular video and in this video as well I'm going to uh quickly just run through what we recall about thoughts uh as a form of civil obligation so in this video yeah uh and at the end of this module you should be able to identify the basic elements of a negligence action discuss and explain the role and meaning of shooting of care in the tort of negligence explain the Australian approach for establishing duty of care and have an understanding of the various control tests and limiting factors used by the courts and apply your understanding of Duty of care principles to fact scenarios you should also notice that although we're talking of theory of care uh in this particular video the the issue of what the content of the Journey of care is and what the standard of care might be are are actually separate questions and we will be discussing the the concept of standard of care uh separately in module three or you know in in the next video but not in this one so as I mentioned it's one thing to talk about a duty of care but it's also got a a different question uh as to what the content of that duty of care and to whom it might be owed and in fact what the standard of care might be that is part of the theory of care we examine that in module three so again as a as a as a reminder what exactly is stored in the high court the high court of Australia in John Pfeiffer for a private elementary princess Rogers noted that the term thought is used to denote not merely civil rounds known to the common law but also Acts or emissions which by Statute are rendered wrongful in the sense that a civil action lies to recover damages occasion thereby so there is a a there can be a civil action on the basis of thought because an action or a mission of an individual will often lead to harm or injury and therefore the way by which uh society and the courts enable recovery uh for a plaintiff or cyber damage and injury will be in the form of damage so that which is which is why this is considered a civil wrong and not a criminal long criminal wrong that can then be punished by our criminal laws it's a civil wrong so the actions or emissions which lead to damage or injury are considered civil wrongs and not criminal wrongs which are then punishable by our criminal laws but and because they are civil wrongs in the sense that they cause damage or injury or harm to an individual or to or to property uh it will be uh it will then allow enable a plaintiff to seek to recover damages uh occasion thereby again when you talk about the key features of authority we recall there has to be an act or a mission and in this particular module we're going to be examining that actor emission which can be considered to be negligent and because of that act or remission which which is considered negligent that then leads to an infringement of a legal recognize recognized right that causes harmer injury and it will it will then lead to an action for damages we also need to remember that as far as damages are concerned which we examine um in later weeks that it is a requirement in an action for tort that there has to be a minimum amount of damage in other words as far as the Latin saying goes the Minimus non-purat Lex the load does not concern itself insignificant or minor matters so in other words you know if it's a minor or trivial thing uh in in relation to damage that will not ground uh that will not allow for an action in torque because otherwise uh the courts will be flooded by all sorts of litigation over a very trivial matter so an action for damages must involve a minimum amount uh in order for it to be allowed to proceed in the court system again as a reminder the basis the legal basis for tort law would be common law in origin in other words uh tort law evolved mainly from decisions of the common reports or other courts and to a great extent Third Law especially in Australia has been reformed by statutes or acts of parliament uh an example of this would be the Civil liability Act of 2003 Queensland there's also the personal injuries proceedings act 2000 to Queensland there's also the Civil Lawrence act deposit of the act and so on so a lot of these statutes passed by the various State parliaments was was an attempt at trying to modify the common law because of their rigidity and sometimes unreasonableness and there was an attempt at the part of the various States so trying to UniFi arrive at a unified set of rules pertaining to tort law that hasn't always been successful as we as we see when we examine the various statutes of the various States but again the focus of our unit in court law will actually be the Queensland civil liability Act of 2003. there will be some um differences in terms of the provisions of the very state laws concerning uh civil liability Acts or civil Lawrence and yet our Focus will will be on the Civil liability Act of 2003 Queensland mainly because Central Queensland University obviously is based in Queensland we will also recall when we viewed the module one video but there are many kinds of thoughts you can have a thought based on negligence there could be a thought based on a breach of statute-free Duty it could be based on nuisance trust versus the person trust faster land intentional thoughts relating to Goods as well as defamation a lot of these uh types of tort lead to physical injuries or physical harm but as we know there can also be uh economic laws there can also be psychiatric harm or psychiatric injury as well uh but a lot of uh the the what happens as we know when it comes to negligence a negligence action typically leads to uh physical injury so for example if a person has been very negligent in terms of driving is legal on the road and that leads to an accident that accident can in fact uh often lead to physical injuries as of course as well as of course mental injury or harm when the when a plaintiff may end up suffering from Psychiatric illness or depression and so on now our Focus as I mentioned in this particular module is to examine the tort of negligence and what it exactly is and what the elements of an action of thought on the basis of negligence uh must must have again when we look at common fact scenarios concerning negligence or negligent action a lot of these as I mentioned happen in the in the context of car accidents it could be slip and trips like you know somebody is walking on a pavement it could be you know one of the uh shopping centers and there might be a banana peel or it could be a a grape there that somebody steps on and that can lead a person to to suffer injuries and again it raises that question of whether or not a plaintiff may be able to sow a particular defendant especially if it happens for example uh in a shopping in a in a grocery Place such as calls or Aldi or Woodies a lot of the nitrogen actions uh are also based on work injuries uh I recall for example I had a friend uh who suffered horrific injuries because um in in a manufacturing setting that he was in one of the one of the um areas where they were stocking a lot of very heavy heavy um heavy products collapsed and when it did it pinned into the wall which which almost killed him and a lot of these uh work injuries are actually quite common it could be as simple as tradies uh being forced to be on a roof to try to you know put the structure the wooden structure of a house or even put the roof and in the process they may end up slipping and falling and that again uh will the question that then arises would be whether or not uh there could be an action uh for uh for tort on the basis of negligence on the part of an employer there can also be negligence in the case of defective buildings or professionals who might provide you know for lawyers they provide wrong legal advice that leads to losses on the part of a plaintiff it could be medical doctors providing the wrong medical advice or surgeons you know cutting off the the wrong body organ uh there might also be actions for night visions on the basis of psychiatric illness or even Financial loss so one of the most litigated areas of Fort law is actually a result of negligence on the part of a defendant we will also observe in this particular module that as far as the negligence action is concerned its origin is in English law and the main point about negligence action is that a person every person has a duty to take reasonable care Not to cause harm to another person as a general principle of course that becomes actually a very complex concept to examine when you think about who exactly is that other person that I must take her off to ensure that he or she does not suffer harm do I owe an obligation not to harm the entire world by my negligence by my negligent action and one of the key cases uh that we will come across when we Study Tours is a case of live versus gold where it was recited by the course of the UK that a man is entitled to be as negligent as it pleases toward the whole toward the whole world if he owes no duty to them so that's uh so in other words we can be as uh negligent as we like but the question is if by our negligent action we cause harm does it mean that uh we are then liable on the basis of of you know uh libel for torque on the basis of a negligent action so think of a scenario like you know um you might have a pistol or a gun doesn't happen in the in in Australia a lot but you know if if you left it in your house and you probably left it in your bedroom and does it happened there was this um you know burglar who came into her house he played her out of the gun and then he shot himself so let's assume you know that particular action because you just left it you know maybe on your bedside drawer that can be considered negligent and it obviously you know cause harm to the to the burglar the question then is where you know can there be an action for negligence uh think about that or you might have a situation where uh you you know you have a car and as it happens um your car uh you know probably has some dangerous and combustible chemicals in it for whatever reason you're probably thinking of doing a science experiment and again you might have a situation where somebody tries to seal the car and and when that person you know enters that car it just causes an explosion so you might it might be argued that there seems to be negligent action by you storing some harmful you know from danger some dangerous chemicals uh in your car which obviously cost harm but the question is uh can an action for negligence then be made against you and you know that leads to the question of a Judy of Thor uh duty of care for there to be a an action in uh an action in Port we also have to realize that uh carelessness or negligence uh is both recognized by by the law as resulting from misfeasance or by an action or non-physians or an Omission so it can be both an action or an emission and the negligence action is is always considered from the Viewpoint of conduct and whether or not the conduct falls short of society's standards which means therefore that an assessment of conduct that's falls short of society standards is always assessment the Viewpoint of a reasonable person so there is an objective standard it's not based on a standard of who the the defendant might be but on what a reasonable person might do under the circumstances to avoid a harm or injury to another where there is a duty of care under those circumstances now looking then at the at an action of the tort of negligence there are three key elements that always need to be proven as I mentioned it is crucial that not only that there is a uh that there is damage or that there is harm it is equally important or is very important in fact to establish that there is a duty of care and and that as a result of actions there is a breach of uh that duty of care that leads to damages again because when we recall one of the basic common law principles is that an individual can be as negligent as he or she likes and you know even if that particular negligence can lead to harm or injury to another person that will be insufficient to ground the action for Thought uh for the thought of negligence because it has to be proven as well whether or not a particular defendant owed a duty of care to a particular plaintiff and we need to remember as we look at the cases of these elements of Duty of care breach and damage often overlap sometimes they can be quite interchangeable in the sense that you can only examine breach of a duty of Care by examining what the content is of a duty of care so in other words you cannot look at breach without knowing what the duty of care is not because every single particular action uh of the thought of negligence has to be examined under its own specific circumstances you might have a a set of facts that are similar but the end result can be different as I show in the next slide one of the one of the things we need to remember as well is that we recall that one of the crucial elements in the action for torque is that not only must there be damage but it also has to be established that it was the actions the negative for example the negligent actions or omissions of the defendant that were the cause of the damage in other words if the if the actions or emissions of a defendant uh which led to uh led to damage that can be considered to be quite remote then um it is possible that the thought of negligence um will fail so for example uh if a person if a driver for example has been negligent in driving on the road and this leads to a vehicular accident which costs an individual for example to be transported by by ambulance to a hospital and let's assume that um the the main issue at that at that time it happened was that uh maybe a a plaintiff suffered an injury on the left hand but while that in the but while assuming that that particular plaintiff while he was he or she was in the hospital then suffered uh was again it was then infected by some kind of a deadly bacteria which then led him uh to him being um you know to have his uh to suffer you know systemic organ failures the kidney or or or the liver and so on which then led to further amputation of the legs and amputation perhaps of an arm the question is would the driver then be responsible for the damage that or harm that was suffered by the particular plaintiff or Worse what if the the plaintiff then you know in going home becomes uh becomes depressed and becomes suicidal and you know attempts uh tries to to kill himself or herself the question then is will the plaintiff be responsible for for all those succeeding uh injuries uh or harm that would then befall a particular particular plaintiff and that goes to the issue of causation and remoteness which we don't examine in this particular module but something that I wanted to to bring you to your attention we will also notice in this particular module that as far as elements of action at the third of negligence uh is concerned and in terms of the particular damage it is often easier to go to apply the principles of Duty of care in the thought of negligence in relation to physical injury rather than psychiatric injury or economic loss mainly because of the potential indeterminacy upon the defendant uh in the scenario I gave just now about the driver you know causing injury to another driver can you imagine the indeterminacy and the potential score unlimited scope of liability if that particular defendant ended up becoming liable for all the damage that a particular plaintiff experiences I'll also give an example later on of uh problems with economic laws where one negligent action would that mean that you know it triggers a an unlimited set of liability on the part of a of a Defender and that becomes problematic when it comes to the thought of negligence as I show later on now when it comes to uh the question of each of these elements the question that often arises whether or not the particular defendant owed a duty of care to the plaintiff so that is the the question that always arises if there is harm or injury that is suffered by a plaintiff on the basis of uh negligent action or emission on the part of a defendant the question is did the defendant owe a duty of care to the plaintiff because if the defendant did not then there will be no uh a an action for uh of the thought of negligence will be unsuccessful as I mentioned earlier when it comes to the the a an allegation of a breach of Duty of care you can never examine that particular question in the abstract but you had to examine it in the context of the actual facts of the case and as I will show in the next slide you might have exactly the same facts uh leading to exactly the same kind of injury but depending on the actual scenario one action for for on the basis of the thought of negligence will will fail another one will succeed because uh negative conduct as we should always remember is always considered in the context of a jury of care if there is no duty of care it is difficult to claim negligence on the part of the defendant so let's examine the issue of Duty of care and when we do so we will also have to consider the issue of reasonable foreseeability so as I mentioned on the one hand what if you have negligent conduct and then there is damage upon a plaintiff the question is would be the defendant have legal liability on the basis of tort uh for his or her negligent conduct or actions let's consider and that that question can only be answered from the beat by by by examining the issue of or the concept of Duty of care let's look at the scenario so assume that you have a house and that house has a swimming pool okay so you've got you have a lot of houses in in Australia which we sell swimming pools and as we know uh swimming pools can often be slippery they can often lead to injury when somebody uh slips uh you know on on the pavement or you know on the surroundings around the swimming pool let's look consider the scenario where you have a house or the pool and you have some Uninvited teams um you know who who come to your house because you were not there they play around in the pool and in the process one of them injures himself that that that team might in fact become a quadriplegic so become paralyzed in what does quadriplegic mean so that's Quad 4 for the main bodily Parts I think so let's assume that that scenario happens but it happened to a teen who was not invited to the house and in fact um in in the scenario we know that the the team together with his friends would have been an intruder so if you consider the failure of the house owner to make sure that the house that the the swimming pool or the area around the pool is not slippery then you might say that there it seems to be negligent conduct and obviously it led to damage in the form of quadriplegia on the part of the one of The Uninvited things the question then is would the house owner become liable uh for the thought of negligence but now put it in a different scenario exactly the same facts but what then happened is that you have a team uh who happens to be your next door neighbor and while you're out you know that teen uh when over over your fence uh played around uh near the pool and same thing same same facts he gets injured after slipping on on the on the surface around the pool the question is uh would you as house owner be liable on the basis of the tort of negligence so think think about that closely and think about it from the Viewpoint of Duty of care and whether or not you know there can be an argument for reasonable foreseeability in the part of the owner that by his failure to ensure that you know the surface around the spool wasn't slippery there was reasonable foreseeability that it could lead to harm or injury to an intruder as opposed to a next door neighbor you might also have a situation where uh you might you know um have infestation of some rats in your property and what you do as a homeowner is to put rough poison in the kitchen and again in that particular scenario what if you had a burglar again burglar Uninvited who goes into the house and sees what he thinks is food he eats it and you know he suffers damage would you be liable for his injuries a different scenario it is a guest who goes to the house and thinking that it was food he eats it and again the question of whether or not the homeowner uh would be held liable for on the basis of the thought of negligence actually revolves around the issue of Duty of Care and More particularly the issue of reasonable foreseeability that this particular set of persons or that these particular injuries might lead to harm okay so think about those now moving on historically when it came to the thought of negligence the only things that needed to be proven was that one the defendant had failed to take reasonable care and as a result of that failure to take reasonable care it caused plaintiff's injury so if these two elements were there bam the defendant would be held liable uh for the for the thought of negligence in a sense though as I mentioned that can be quite problematic because as I mentioned you know you could have the scenario of the pool slippery pool causing injury to a burglar or Uninvited teams or a poison causing instrumental burglary and in that case it opens a particular defendant to almost unlimited legal liability and indeterminacy as to who he can be liable to and this is uh this particular scenario was examined in the case of Heaven versus Spender uh which came out in the in the UK in 1883 decided in 1883 but uh by the Queen's Queen's bench which involved uh a contract by which a ship was being painted the plaintiff in this particular case was a painter who was actually hired by a contractor and so that particular that particular contractor contracted with the owner of the ship and looking at it from the Viewpoint of contract law you will notice that because the painter was not hired by the owner of the ship it could be argued that the ship even if it caused injury as a result of negligence the ship owner couldn't be had libel for the injuries of of the particular painter because you know they had no privity of contract and there was no contract between them and an argument could also be made by the by the ship owner that he did not that he did not invite the plaintiff to do the painting if there was you know a painting job that was to be done it was upon the invitation of the contractor so if there was liability the liability of the ship owner could only happen if the contractor himself had suffered injury but in this case the it was the plaintiff uh who the plaintiff was a painter who had no primitive contract with a ship owner who became injured with one of the ropes um was Cut Loose by accident and he fell and injured himself the the Queen's bench uh made a ruling that in this particular case although there was no contract between the painter and the ship owners the ship owners could still be held liable for the injuries of the plaintiff on the basis of negligent action the failure to ensure that the ropes would not snap and therefore the painter uh would would that fall and suffer injury because there was negligent action on the part of the of the owner but more importantly the Court ruled that the ship owner owed a shooting of King not just for the contractor but to other people who were working with uh in in the premises where the ship was being repainted so this was the first time that there was an an additional element that was added to the the thought of negligence so that it isn't sufficient that uh in order to ground an action for the thought of negligence it is no longer sufficient to prove that the defendant had failed to take reasonable care and um on the basis of the failure to take reasonable care you know the plaintiff suffered injuries it was also therefore uh important to prove that there was a duty of care and it was a breach of the duty of care that effectively led to the Harlem course to the plaintiff so that was the case of habitable suspender in that particular case um the The Queen's bench ruled that whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense would at once recognize that if he did not use ordinary skill and Care in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the of other a duty arises to his ordinary scale and skill to avoid such danger and so therefore uh in this particular case the Queen's bench held that the duty of care arose because the plaintiff and the defendant were in the specific relationship of inviter and inviting in other words apparently the the the plaintiff was there to do the repeating upon the invitation of of the the shipbuilder or the ship owner and again as we think about that case of Heaven uh versus Spender you have to consider what specific relationships therefore gave rise to a Judy of care so that's basically the question one of the questions you need we need to arise under what circumstances or under what specific relationships would there be a duty of care and here there wasn't the duty of care because there was an inviter and invitee in other words going back to that scenario the swimming pool or the house where a burglar for example ate rat poison the question is was there a specific relationship of inviter and invite d uh in the case of The Uninvited teams there was no specific relationship of inviter and invitate and so therefore it could be argued there is no duty of care the same thing with the burglary however in relation to The Uninvited neighborhood teams you know Neighbors teams who are your neighbors and they come to your house it could be argued that in two ways one they could have been previously invited and therefore they assumed they could just come to your house or it could be that as far as the teams are concerned if you have a swimming pool there it becomes a it becomes a Temptation that is just too difficult to resist and so therefore you know that will form that that will uh be the basis for uh a a a relationship of inviter and invited that will then ground a duty of care the other way of uh looking at the case of the principle of Duty of care is to examine the case of Donahue versus Stevenson which is one of the more important cases in tort law which we recall involved an instance of a two friends going to an ale bar and the friend um purchased a ginger ale from the the bar owner and that he gave it to his friend the friend dragged me ginger ale he found out that there was a snail a dead snail in the ginger ale and that cost him you know physical and mental injuries or let's just focus on the mental injury there because it caused to led to vomiting and so on the question was could the that friend who was who did not buy the the ginger ale eel from the bartender the butter owner could he proceed against the bar owner given the absence of a privilege of contract between them because the contract of sale was only in relation to the bar owner and the friend who then supplied you know that that plaintiff uh the ginger air and um the the court the the House of Lords uh in this particular case ruled uh on the basis of tort uh that friend to whom a ginger ale was applied could proceed against uh the bar owner on the basis of thought because the House of Lords said that you must take reasonable care to avoid Acts or omissions which you can reasonably foresee would be likely to injure your neighbor so this particular case the House of Lords considered that uh the other friend to whom the ginger ear was given was a neighbor of the bar owner and because of the actions of the owner and being negligent in supplying ginger ale uh that you know that was that had a dead snail then the bar owner uh was held could could be held legally liable uh on the basis of the thought of negligence and in that particular case the House of Lords said who then in law is my neighbor the answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or emissions which are called in question so but we will see that this that there is a problem with this concept of the duty of care uh arising in uh favor uh in favor of a neighbor uh even the question of who is my neighbor because that can be too broad who exactly is my neighbor in terms of legal contemplation and particularly in terms of reasonable foreseeability uh so part of part of the Judy FK problem really is where does the neighbor concept end I'm going to give you some examples in a short while and to how many cases can it be applied and where exactly are the outer limits so you know when you think about a neighbor is your neighbor the next door I mean in a in a very Layman's sense when you think about the neighbor who is exactly is your neighbor especially the air in the era of you know uh social media and the internet is is your neighbor uh our neighbors those located very close to you and of course uh it it just can't be that so but so in other words if you will have a duty of care in relation to your neighbors can it be considered that everyone is your neighbor and where does the neighborhood neighbor concept end and so these questions continue to test the senior Common Law Courts of both Australia and the UK as and elsewhere uh okay where am I okay let me let me jump in here the question about the duty of care I think it's on in one of the other slides I have there consider a a case where uh in the case in the era of you know covid-19 let's assume that there is a a company which requires in all its employees it just you know it's less problematic right well it happened in the in Australian however but let's assume that there is a a company that requires all of its employees to continue working even if they appear to be sick and let's assume that as a result there appears to be a worker who has covid-19 and is involved in sales and this individual employed by this particular company then goes on a on a sales visit to a the client and in doing so ends up infecting you know some of their uh some of the employees of that particular client company and because of because a lot of this it doesn't have to be copied 19 could be some other viral infection and as a result of the infection uh a lot of the a lot of the key personnel end up becoming sick uh they miss their sales targets they're unable to comply with the contractual obligations with their own customers leading to multi-million dollar losses okay that scenario the question then is that particular company that had hired the sales sales employee were they infected uh the the uh who then infected the employees of a client company would that first company be liable for all the the the the physical harm and all the economic losses suffered by the declining company so that becomes problematic when you look at it from the Viewpoint of who the neighbor is questions of proximity because surely there has to be a point where uh courts must be able to limit the number of potential claimants or the number of potential plaintiffs there must be a point where a court would have to say you know the losses can't go beyond this or the time period during which those losses might arise because uh what would it mean that because of the action negligent action of the part of a particular Defender that particular defendant can be head liable you know as as uh events unfold and as bad events Cascade down the down down the months and down the years so that becomes a a basic issue and so therefore for the court when when it examines the issue of Duty of care there's always an aspect of a control mechanism the duty of care principle becomes a control mechanism because the more widely uh it is and more encompassing it is considered so that you know every single defendant in uh it upon a a defendant is imposed in Broad duty of care that will mean that that particular Defender then will owe uh multiple obligations to various potential uh neighbors and bears potential uh plaintiff litigants and so the courts have a role in trying to control the flow of litigation in order to to try to limit the floodgates of litigation as well as in order to set limits to what is uh considered to be a high level of indeterminacy in terms of the defendant not not knowing to whom he can owe certain duty of care obligations so when we examine the duty of care uh we will notice that the courts are in are in uh continue to may continue to increase the categories or scope of liability beyond that which is traditionally recognized some of these categories we examine are here in this particular module and uh this is done so again in fact within the context of the need for certainty so that if there is a an uh you know an open-ended view as to what the level of Duty of care might be that will lead to indeterminacy and the possibility of unlimited and environment litigation so in terms of summary when we examine the duty of care uh it is crucial that the liability and negligence is based on proving a duty of care to people in the position of the damaged party so there has to be intuitive care the duties as we recall are owed to certain classes of people it is not to the whole world so the plaintiff has to show that the defendant was under a duty to exercise reasonable scare and skill because his or her conduct involved a foreseeable risk of injury or harm to the others and the plaintiff was within the class of persons to whom that truly was owned uh what typically happens in these scenarios is that where a plaintiff is injured that plaintiff will often have to cite preceded in order to show that in this particular class of cases or individuals who suffered injury on the basis of negligent action there is proceeding to show that there is that a duty of care was owed now some of these well-known and established categories uh would include employer and employees so there is a recognized in negligence actions that is a recognized category of uh where duty of care is pursued to exist and this for example is in relation to employers employees where the employer is expected to ensure that the the proper plant and Equipment are provided and maintained so that they do not cause injury to their employees so if you if you have a if you have an employer who fails to properly ensure that the equipment there do not cause harm it can be you know falling stacks of of of products or it could be an equipment that fails and causes severe burns then in that particular case this is an established category and the employer will be reliable there's also a requirement an expectation that uh part of the duty of care but employers to ensure that there's a provision of a safe safe system of work as well as the proper selection of skilled prisons to manage and superintend The Business there's also a duty of care that is recognized in the case in the case of medical professionals and the patients in the case of motorists in relation to other Road users in relation to parents and third parties to ensure that a parent has a duty to control children so that they do not cause injury to third persons or property so they're at least in relation to uh to parents of young children because again you might have scenarios where like what's happening in Queensland uh in in recent months where there seemed to be some rampaging teams so still uh you know teenagers so still uh cars expensive cars and they just wreak havoc on the roads of Queensland and the question then is do these parents who feel they could to control their teams uh can they be can be maybe have liable for the injuries that may be suffered by you know third persons and of course more than asking that legal question as we notice is that if we examine a theory of Third Law as being based on the issue of compensation one of the problems we often see is that it will be pointless to pursue an action on the basis of the thought of negligence if you know that the potential defendant doesn't have any money so in many cases a lot of these teams or who steal cars and then end up you know killing people of the roads or damaging property their parents uh don't really have the financial resources to to pay damages so that can't be problematic but what it does tell you is that if you are a parent and you have a young child you go you know perhaps in a shopping center and the child knocks off an expensive item you can be unliable the case of Mikhail versus Watson another established category would be in relation to professionals and clients it could be in relation to financial advisor providing Financial advice a client a relation to a lawyer providing legal advice to a clients so these are established categories where the courts recognize that the in these particular scenarios in this particular categories a duty of care exists now again um when you examine the the issue so the the issue of Duty of care one of the critical issues really is was there reasonable foreseeability yes there might it might be said that that a gdfk exists but could it be reasonably foreseen that under the circumstances a defendant owed a duty of care to the plaintiff so that's basically the question so assuming that there might be a potential duty of care the basic question that arises is could it be asked could it be argued that a defendant owed uh it could it be reasonably foreseen that a defendant owed a duty of care to the plaintiff so that uh was it reasonable what was it reasonably foreseeable to an ordinary position uh to an ordinary person in the defendant's position the carelessness of the sort of alleged might cause harm the general type of complaint of the class of people like the plaintiff so if you examine for example the case of Chapman uh versus hers in this particular case um there had been a vehicular accident uh it was Chapman who was responsible for the the vehicle vehicular accident and uh what and then as a result there was a doctor who tried to um you know to to come to Chapman's Aid on the road so Chapman by his nitrogen action uh suffered an injury uh or a road accident and as a result there was a doctor who saw what happened and the doctor came to the rescue of um of Chapman but as a doctor was trying to Aid Chapman who was you know responsible for their own accident he was then uh killed by a second driver in this particular case there was no doubt that the second driver uh could be held uh guilty or could be held liable for for the thought of negligence but but the second driver then sought uh to to see to make as a co-defendant Chapman who was responsible for the road accident for the first road accident so the question then is did the injured first driver over Judith care to his rescuer okay so think about that could the first driver who you know caused the road accident uh which led to a rescuer being killed could it be held responsible the answer is yes the court the High Court ruled that it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence so it was reasonably foreseeable in other words that if somebody uh you know is involved in an accident it is reasonably foreseeable that there will be somebody who'll come to his or her rescue and as a result of you know coming to the rescue especially in a situation where there are cars or on the road that rescuer can be harmed so there was a duty of care under their Circle under those circumstances uh the court also pointed out that reasonable foreseeabilities does not require reasonable foreseeability or the precise sequence of events which lead to injuries it's sufficient that it can be reasonably foreseen that this kind of injury can potentially happen now uh before we leave this particular case again we need to remember that uh under the common law there is no general duty to rescue anyone so as I mentioned um I think and welcome video even if you are you know a very good swimmer and you see a child struggling in the in the serve and you know that the child is drowning even if you are the only person there who can be in a in a position to rescue the child you do not have a legal obligation to rescue the child so that if the child in fact suffers injury or harm or dies in the process of you failing to rescue uh that child you will not be held legally liable under common law okay so when it comes therefore to the duty of care test and as I mentioned it's the test is about reasonable foreseeability the key question is the sphere of reasonable foreseeability so there has to be a limit a scope of the sphere of reasonable foreseeability there has to be a point at which it starts and the rest of the point at which it ends it can't be indeterminate so that you become you know uh you become potentially liable for everything so the key question is what class of people might possibly be put at some risk of injury in some way if the defendant failed in some way to take reasonable care and is the plaintiff one of those people so that's the basic question so that that makes a distinction uh between you know an intruder and somebody who has been invited to the house or invited to the car now what we need to remember however that is that even though the answer might be yes even though the answer might be yes that this particular plaintiff can fall within that class of persons to whom a duty of care uh might be owed it does not necessarily mean that the defendant that owes the plaintiff a duty of care it doesn't follow because what we often will see in the cases is that the duty of care is always tied to the question of breach you can't examine the issue of Duty of care in the abstract you have to examine the particular breach scenario so that oftentimes you look at the bridge in order for you to determine whether or not there is a duty of care in the first place so instead of asking is there a duty of care in this scenario that becomes problematic as the courts have seen because if the answer is yes it will often necessarily follow that the defendant would then become liable in the thought of negligence so one way of looking at it is sometimes to examine whether or not on the basis of the actions or emissions of a particular defendant where there has been an allegation of breach was there a jury of cash in other words because of the overlapping concepts of of Duty of care breach and damage these three elements always have to be considered before uh you you answer the question of whether or not there is legal liability on the basis of that sort of negligence the the other uh question that arises is uh even if it does even if it is stated that a particular defendant owes a Judith care to a particular class of plaintiffs it doesn't follow that a Defender should then have to take action to protect those people from harm it doesn't follow uh again that is because even though there is a duty of care even if that is acknowledged and recognized the nature and the content of Judy and the extent of Judy these are separate issues the issue of standard of care these are separate issues yes there is a duty of care but the question is what exactly is the nature of the duty of care what exactly is that gdfk and what is the extent of the duty of care these are separate issues uh uh a good case uh in point would it would be the case of coal versus South Twin Heads Rugby League Football Club so in this particular scenario uh you're the plaintiff who was drunk you know as a result of drinking at the club and uh softweed heads Rugby League Football Club was aware that the that that particular drunk individual had been drinking there and you know could potentially uh suffer harm when that individual leaves and that's in fact what happened the drunk plaintiff uh left the club in a in an intoxicated State and was run over by a car outside the defendants Club the question then was uh should the defendant be held liable what do you think and you know the answer is no part of the part of the uh reason why the defendant could it be reliable was that when you consider when you think about it that there are there is that there is that policy issue for example of autonomy should you know uh should should uh the soft Tweed heads rugby league for example really prevent a a a customer who's been drinking a lot from leading the premises which leads to an operational question what exactly would the were the uh with a bar do lock the doors or tie up uh the the drunk the drunkard uh customer so that that's a problematic question and if the and if the company that serves the the drinks for example limits uh severely limits the the freedom of the customer to drink as much as he likes wouldn't that lead to issues of autonomy shouldn't individuals one have the the right to determine what to do with their own lives or their own free time and to shouldn't um individuals be responsible for their own safety so these are some of the questions that will end up having to be considered when it comes to issues of Duty of care and reasonable foreseeability so that um in essence what it means is that the duty of care cannot be determined in the abstract okay so when you ask the question was the Judy breached it cannot be entered in the abstract but you need to consider the particular scenarios and the facts so as I mentioned I kind of highlighted some of the problems when it comes to the basis for the issue of reasonable foreseeability uh we recall in the case of Donahue versus Stevenson that Lord Atkins talked about uh the the Judy that a defendant has to ensure that his neighbor does not suffer harm but that leaves a question of who exactly is your neighbor and one of one way of looking at it is uh the issue of proximity so a neighbor is somebody who is proximate or near to you so that um the duty of care therefore consists of two issues reasonable foreseeability and proximity so in the case of change princess coffee uh justice Dean for example said proximity involves the notion of nearness or closeness and Embraces physical proximity in the sense of space and time between the person or property of the plaintiff and the person or property of the defense of the defendant Etc now this this legal principle of reasonable foreseeability being based on proximity nearness and closeness both in terms of physical space um and circumstantial proximity for example this was quite popular in the early 1980s and 1985 during the years when chief justice Mason led the high court but it was ultimately abandoned for being too imprecise in the case of Miller versus Miller the high court law the when you talk about uh the issue of proximity it really doesn't State no point to any relevant principle that assists in the resolution of disputed questions about the existence of a duty of care so the what typically happened the court observed was that when a defendant was held liable there was first a finding that he was liable and the liability was based on the fact that he seemed to have been approximate to or very you know near or close to the plaintiff but there was really no underlying you know there was really no underlying principle behind it so it was it was more of a finding of breach under the circumstances that led to a showing that you know they were proximate but why they were approximate couldn't be couldn't really be answered because when you look at other factual scenarios you might have situations where uh a plaintiff and defendant could be under the same circumstances of being proximate but there potentially could be uh no finding of of of negligence there was a a bit of a change in the case of ants the case of ants versus London borough of of Merton because here we will notice that the court was clear that there sometimes has to be a policy question involved so in the case of ants versus London borough of Merton uh there was a claim on the part of the plaintiffs that uh the this particular local Council had the responsibility to examine uh these you know the structure and any potential structural effects of a building and because of their failure to uh properly examine these structural defects harm had been caused to to the plaintiffs but in this particular case the House of Lords rule that the existence of a duty of care more than going to the issue of you know proximity it depended on a two-stage test one was the harm reasonably foreseeable but two if it was were there any policy grounds on which the law should negate or limit the scope of the jury this is a crucial point because if you recall um I think in the first video the the welcome video uh to to the unit I had mentioned that my son so it's now 19 suffered a big gash on his left foot which was almost severe when he stepped on glass uh on the Rocks as he was trying to jump off a rock formation in a quarry in caboolture okay now you might have a situation where a local council is responsible you know owns you know acquiry or owns particular uh lands and so on but the question is what if you know uh a property that is owned by Ayla land council is a site in which the a plaintiff suffers injury we can argue that the harm is reasonably foreseeable but the question then will be should the council then be held liable for the harm and as we see in a lot of the cases I think in week three when it comes to the standard of care uh policy grounds can often uh prevent uh an action on of uh or the basis of the thought of negligence against a local Council because uh the courts would say that if you allow uh a torture's action to be taken against a local Council for you know all sorts of potentially negligent action there is no limit to potential Council liability and the only way for the local Council to ensure that there is that no harm would befall you know certain individuals would be to to plug these gaps but in doing so you know where would the funding come from so that when you examine the case of unanswered versus London borough of Merton the court was saying that you would oftentimes have to consider policy grounds on which the law should negate or limit the scope of the jury and that of course is an Applause not an acknowledgment of the importance of judicial policy which we recall I highlighted uh previously the issue of potential judicial activism where it is the courts that kind of res shape and reshape tort law as opposed to uh the parliament the state parliaments for example that determine what tort law ought to be mainly because it is the state parliaments that under a framework constitutional framework of government are actually the the body of the body the branch of government that uh creates law now this approach in the case of answers London bar of Merton was initially accepted by the Australian courts but again that approach is not without its critics mainly because again is there really a place for courts to to get involved with matters of policy should it be matters of policy be left to the executive or should be left to the to Parliament uh and secondly when it comes to uh policy for example it no longer involves a legal question that becomes that might involve political social and economic questions which really uh are not within the uh the scope of the duty of a court so so there has been criticism of that as well I also mentioned uh earlier that as far as the gdfk test it is unsuited to economic laws and get the exact example of the covid infection or bacterial infection uh one of the issues as well would be the case cited in our prescribed textbook of a ship that that legitly spills chemicals in the rivers for example and in as a result what if the government then um you know process restrictions uh in relation to the economic activities in the area because of the chemical spill which can be harmful to human life and because of the government restrictions a lot of businesses fold or they're close and what if you have a business that closes and as a result of that business closing there's another business that is affected and you know further down the line the question is should that ship be held liable for all of these cascading losses and surely there has to be a point where issues of indeterminacy come into play and the courts will have to say no there has got to be a point where um a the negligent action of a Defender should not uh you know should not lead to the defendant being liable for all uh losses in an unlimited way especially when it comes to economic loss person on the loss is or personal injuries for example are kind of discrete and circumscribed because you know when there is physical harm that is suffered by a plaintiff surely there's a limit in terms of losses of limb and losses in terms of uh capacity to earn but economic losses that's in terms of business losses for example that's almost unlimited so what it means is that the search for a duty of care test actually continues a lot of different judges have used different methods in the case of caparo the approach was uh to to have a three-stage test of reasonable foreseeability closest of relationship meaning proximity but then the question of whether it would be fair just and reasonable to impose uh this particular duty of care upon the defendant under the circumstances again that question being that um you cannot divorce duty of care without looking at the actual factual scenario the the example being that local Council can you imagine if you would it be fair unjust and reasonable to impose upon a local Council a a legal obligation or a duty of care to ensure that no harm uh befalls any you know any member of the community uh in all the lands and properties that it owns and it will be easy to argue that it will not be fair and just and reasonable because otherwise um the local Council will will have its hands tied and its budget tied in you know trying just trying to avoid that these losses do not eventuate there's also an incremental approach and the reasonably the reasoning analogically from these other cases and edging the low forward in small steps so that the attempt is to try to examine if that under this particular case fact so whether or not given that there are certain recognized uh classes of cases or persons where there is a duty of care can it be said that it can also apply by analogy to this particular scenario to this particular particular plaintiff so that is an incremental approach reasonable foreseeability continues however to be a strong guiding principle which returns to the simple neighbor principle and focusing on the word reasonable as the limiting factor on foreseeability so when you examine therefore the issue of reasonable foreseeability what exactly do we mean by reasonable and what can we considered to be reasonable uh in terms of a duty of care there's also been the sealant features approach and what the courts do in the sealant features approach is to identify the Salient features that matter you know the the features which are glaring the features which uh can really be highlighted and part of the sealant features uh that can be considered would be the plaintiff's autonomy and you know the the ability of the plaintiff to take care of himself make decisions for himself and take care of you take care of himself to make sure that he or she doesn't suffer injury as well as the vulnerability of the plaintiff but that leaves the questions what exactly are the features that should be considered salient now as we have seen therefore although we know that there are three elements uh in an action for tort you need a there has to be unique established that there was a duty of care owed by a defendant and you need to establish that the defendant breached the duty of care and as a result of the breach of Duty of care that led to injury uh or harm to a plaintiff we then asked a question of what exactly under what circumstances exactly does the duty of care arise and we canvas the issue about uh the issue of proximity the labor principle under the case of Dania versus Stevenson we look at Anne Annes versus tomorrow Merton we looked at the caparo principle we looked at the incremental approach we looked at the sale and features approach we looked at the reasonable foreseeability approach focusing on what exactly is reasonable with the circumstances which makes us say that you know negligence cases can can be quite difficult to to litigate then and it can in fact be quite difficult for the plaintiffs to establish uh success or you know try to be successful in a in an action for tour although that might appear to be the case that's not really true because in many of the in most of the negligence cases in most of the negligence cases they're actually less complex and controversial because it's easy to show uh whether or not there is in fact a duty of care given the uh established classes or cases of Duty of care that is recognized under third law so that's not really problematic so even though we tried to Canvas uh you know the the approaches towards issues of um duty of care in truth and in fact many of the languages cases are less complex and controversial most cases are in fact straightforward there is a duty to take care because reasonable foreseeability is enough to give rise to Judith care in such cases and so at the end of this module you should be able to identify the basic elements of a negligence action discuss and explain the role and meaning of Duty of care in the thought of negligence explain the Australian approach for establishing duty of care and have an understanding the various control tests and limiting factors used by the courts and apply your understanding of Duty of care principles the fact scenarios and so with that um I thank you for watching this video and I hope to see you uh in our tutorial bye