Monash University High School Mooting Competition

CASE SUMMARIES

DUTY OF CARE

A duty of care was originally established by applying Lord Atkins neighbour principle test from
Donoghue v Stevenson (1932). You should be able to find this case in any Yr 11 text book.

The modern test was laid down in Caparo Industries v Dickman (1990) and has three limbs:
1. Whether the consequences of the defendants actions were reasonably foreseeable.
2. Whether there is a relationship of proximity between the parties, that is, a legal or physical
closeness. Basically this means asking whether the parties were sufficiently connected.
3. Whether, is all circumstances, it would be fair, just and reasonable that the law impose a duty
of care.

For the purposes of this competition it is safe to assume that both parties agree and accept that a duty
of care existed. It is, therefore, not necessary to research or argue this element. You can simply state
this element is not contentious.

BREACH OF DUTY OF CARE

Vaughan v Menlove (1937) 3 Bing (NC) 468; 132 ER 490

Facts:
The defendant placed a stack of hay bales next to cottages owned by the Plaintiff. The
defendant was told that it was possible that the hay bales would ignite, to which the defendant
replied that he would chance it. The defendant was a man with limited intelligence. The hay
bales did catch on fire and burnt down the plaintiffs cottages. The Plaintiff sued to recover the
value of the cottages.

Issue:
Whether the court should take into account the intellectual limitations of the defendant
(subjective standard), or whether an objective standard should be adopted in cases of
negligence.

Held:
An objective standard should be adopted.
This case established the rule that the standard for judging negligence is the conduct of a man
of ordinary prudence (Tindal CJ at 474).
The defendant lost.

McHale v Watson (1964) HCA 64

Facts:
Three children were playing including the defendant (Watson) and the plaintiff (McHale).
Watson, who was 12 years old a the time, threw a sharp metal rod at a piece of wood. The rod
bounced off the wood and hit McHale in the eye, causing permanent blindness. McHale sued for
damages.

Issue:

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 Should the standard for judging the negligence of a child be the same as that used to judge
adults? Is the reasonable person test one of a reasonable adult, particularly given the decision
in Vaughan v Menlove?

Held:
McTiernan (for majority)
o A child should be held to the same standard as an ordinary child of comparable age.
o Watson was behaving like a normal 12 year old who could not be expected to be able to
perceive the risks involved in the same was as an adult. Watson did nor act
deliberately.
o Watson acted in the same way as any reasonable 12 year old would.
o Watson won
Menzies (in minority)
o Negligence should be determined by an objective standard and Watson had not acted
as a reasonable person would.

Philips v William Whiteley Ltd [1938] 1 All ER 566

Facts:
The plaintiff (Philips) went to the defendant (WW) to get her ears pierced. The defendant
referred her to a third party jeweler. P had her ears pierced by the jeweler. The jeweler took all
relevant precautions regarding cleanliness but P still developed an infection that caused an
abscess on her neck that required medical attention. P is claiming damages.

Issue:
Was the jeweler negligent? To what standard to care should the jeweller be held?

Held:
A person with special skills will be held to the standard of a reasonable person possessing
those same skills.
A jeweler is not expected to take the same precautions and a surgeon would take and the
jeweler had taken all reasonable precautions to avoid an infection developing.
Goddard J
o Although the jeweller did not 'use the same precautions in procuring an aseptic
condition of his instruments as a doctor or a surgeon would use, I do not think that he
could be called upon to use that degree of care.... a jeweller [does not] profess that he
is going to conduct the operation of piercing a lady's ears by means of aseptic surgery
about which it is not to be supposed that he knows anything'
P lost

Imbree v McNeilly [2008] HCA 40

Facts:
The defendant was a learner driver and the plaintiff was supervising. While D was driving,
they came across some tyre debris on the road. The plaintiff called out for D to brake, but D
swerved to miss the debris and rolled the car. P suffered spinal injuries in the accident and
became a tetraplegic.

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 At the first trial, the court found there was a breach of duty and P was awarded $9.5 million
dollars. However, the damages were reduced by 30% for contributory negligence on the part
of P.
On appeal, The Court of Appeal confirmed the finding of negligence but increased the
contributory negligence from 30% to 66%. This significantly reduced the damages.
A further appeal was made to the High Court.
Issues:

Whether D owed the same standard of care as any other driver, whether licensed or not.

Whether the contributory negligence caused the damage.

Whether, because P was aware of Ds inexperience, the case should be dismissed in favour
of D as Ds standard of care was what should be expected under the circumstances.

Held:

30% contributory negligence was more appropriate

Gummow, Hayne and Kiefel JJ at 96

o When it is recognised that one particular respect in which the [plaintiff] was
found to be contributorily negligent was the failure, having observed the debris
on the road, to instruct the [defendant] to straddle it, we are of the view that it is
right to conclude that the [plaintiffs] responsibility for the accident was not
insignificant. When coupled with a failure to offer the basic advice to a learner
driver to make no sudden change of direction or speed on a dirt road, an
apportionment of 30 per cent contributory negligence to the [plaintiff] was not
unjust. Rather than prolong this litigation further, it is better that this Court
substitute its view of the proper apportionment of responsibility by adopting the
proportions that were assigned by the primary judge.

An inexperienced driver should be judged by the same standard as any other reasonable
driver, whether experienced or not.

Contributory negligence exists because D was not given proper instruction by P.

Furthermore, contributory negligence exists because P knew that D was inexperienced
and therefore there was an increased risk of injury.

P won to the extent that the contributory damages were reduced from 66% to 30% but
lost on the grounds that there was no contributory negligence at all.

Carrier v Bonham [2002] 1 Qd R 474

Facts:
D was a mentally ill person who escaped from the hospital and stepped in front of a moving
bus in an attempt to commit suicide. The driver of the bus (P) sued for nervous shock.

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 At trial, the judge dismissed the case on the ground of negligence, saying there was no
negligence on the part of D. The judge said the standard was not the objective standard of an
ordinary person in a situation where someone has a mental illness. However, the judge
found D liable on a lesser standard (the rule in Wilkinson v Downtown) of wilfully doing an
act designed to physical harm.
D appealed, claiming that he should not be held liable at all.
Issue:
Should the standard of care owed by a person with a mental illness be less than that of an
ordinary person (making it a subjective rather than objective standard).

Held:

The Court of Appeal of the Supreme Court of Queensland held that the judge had not made
a mistake by applying the rule in Wilkinson v Downtown BUT the D was also liable in
negligence. That is, the trial judge should not have made allowances for Ds mental illness.

McPherson JA
o Ds mental condition had no effect on the standard of care owed and is to be judged
by the standard of the ordinary reasonable person.
o Ds condition did not reduce his liability in negligence to P.

D lost

Shire Council of Wyong v Shirt (1980) 146 CLR 40

Facts:
P was water skiing in Tuggerah Lakes on a circuit often used by water skiers in 1967. The
depth of the water at the time of the accident was three to four feet deep. In 1966, the
council (D) had dredged the channel to six to eight feet and erected signs saying Deep
Water. The accident occurred near those signs. P claimed he was misled by the signs and
thought the water was deep enough for water. P fell and hit his head and became a
quadriplegic.
At trial, the court found the council was negligent. The New South Court of Appeal also
upheld the verdict.
The council appealed to the High Court.
Issue:

Was the council negligent was it reasonably foreseeable that the signs could be interpreted
this way?
Held:

A risk of injury that is remote (unlikely to occur) may still be a foreseeable risk.

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 Foreseeability means not far fetched or fanciful.

A reasonable person might conclude that the sign was ambiguous and could be read to
meant that the water was deep and might induce a reasonable person to water ski in that
area.

It would be possible to contemplated that a water skier might be projected into the air at
high speed and suffer injury as a result.

D lost.

Qualcast (Wolverhampton) v Haynes [1959] AC 748

Facts:
D was an experienced moulder. While working in Ds foundry, he spilt moulted metal on his
feet and sued for damages in negligence. Safety equipment (boots and spats) was available
for use, free of charge in the foundry, although workers were not required or advised to wear
them - the foreman in the foundry stated that D was experienced enough to decide for
himself. There was no evidence presented as to what the safety procedures were in other
foundries.
At trial, the court found there was negligence but that P was 75% responsible for the harm
caused. So D was only liable for 25% of the damages.
D appealed.
Issue:
Was D negligent in not providing advice regarding safety equipment and requirements?
Held:

This is a question of fact that must consider the state of knowledge of the parties at the time.

Ps experience is, therefore, relevant.

The employer was not negligent because the risk of possible harm was obvious and P was
experienced so knew the risk. P could have worn protective clothing but chose not to.

P lost (so got nothing)

Roe v Minister of Health [1954] 2 QB 66

Facts:
Two plaintiffs had minor operations and were given anaesthetic which had been
contaminated. The anaesthetic was stored in glass ampoules which were placed in sterilizing
fluid. The ampoules contained minute cracks which could not be seen with the naked eye,
and were contaminated by the sterilising fluid. Both Ps were permanently paralysed.
Issue:

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 Was the hospital negligent?
Held:

The facts as they stand at the time of the event must be considered. At the time, it was not
known that anaesthetic could be contaminated this was.

The hospital had followed procedure.

There was no negligence as the risk was not foreseeable at the time.

Ps lost.

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; [1998] HCA 5
Facts:
The plaintiff fell off a cliff edge which was controlled and managed by the defendant. P had
been drinking in the car park which was surrounded by a low log fence. P had no
recollection of the events and there was no other direct evidence available. P sued for
damages in negligence for failing to provide proper fencing.
The trial judge rejected the claim for damages in negligence, as did the Court of Appeal. P
appealed to the High Court.

Issue:
Did the defendant owe P a duty of care and if so, was that duty breached?
Held:

A duty of care was owed but that duty was not breached.

Although a risk was foreseeable, the court must consider all the circumstances.

Must consider how a reasonable person would have reacted to such a risk.

No other injury had occurred in over 100 years so the probability was low, while measures
taken to protect against the risk would be expensive.

The danger would be obvious to a reasonable person as it was a cliff.

Not reasonable to expect D to do more the accident was not a likely occurrence (that is, it
was improbable)

P lost

Bolton v Stone [1951] AC 850

Facts:

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 The plaintiff lived next to a cricket ground. P was hit in the head with a cricket ball while
standing at the gate of her house. The cricket ball was hit an unusually long distance. The
cricket field was surrounded by a 12 foot-high fence. Residents stated that over a 30 ear
period approximately 6-10 balls has been hit into the street. P sued for public nuisance and
negligence.
Issue:
Does the defendant have to take steps to prevent an act that they know, or ought to know,
may cause damage however improbable?
Held:

On a test of foreseeability alone, the plaintiff would succeed. Once one ball went over the
fence, then it was foreseeable that other balls would do the same.

However, the court must also consider the standards of ordinary people in the course of
ordinary life there are always risks in everything we do.

The risk was extremely low.

The cricket ground was big enough for the purpose for which it was used.

The defendant had done everything reasonable to prevent an accident. It would be

unreasonable to expect use of the ground for cricket matches to end.

P lost.

Paris v Borough Council [1951] AC 367

Facts:
The plaintiff had only one eye. While working in a garage, splinter of metal flew into his
only functioning eye, causing total blindness. P was not wearing goggles and his employer
did not provide them. P sued in negligence.

Issue:
Did the employer (D) breach their duty of care to P by not providing goggles?
Held:

Duty of care is defined by the individuals involved not all people as a general class.

A higher standard of care is owed to those who are particularly vulnerable. P was more
vulnerable because he only had one eye. The risk of serious harm was greater.

A higher standard of care was owed to P.

The standard of care required is directly related to the degree of risk.

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Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54
Facts:
Ryan (P) contracted Hepatitis A after eating oysters cultivated in the Wallis Lake by the
defendant. The lake had been contaminated due to unusually heavy rain. The local council
and the State of New South Wales were the owners of the lake. Graham Barclay Oysters
operated a business in the lake with the permission of the state authorities. The Federal
Court and the Full Court of the Federal Court found in favour of P. The defendants appealed
to the High Court.
Issue:
Did the local council and the state owe a duty of care to P?
Held:

The public authorities had a duty of care in relation to public health and safety but not to
consumers. Therefore, they owed no duty of care.

Graham Barclay Oysters did owe a duty of care but had not breached that duty.

In order to avoid the contamination, D would have had to move the entire operation to a
different location. It is unlikely a reasonable person would take such precautions.

D could not be expected to take such extreme precautions so had not breached its duty the
greater the burden the less likely they are to be considered reasonable.

D won.

Watt v Hertfordshire City Council [1954] 1 WLR 835

Facts:
There was an accident about 250 metres from a ire station. A woman was trapped under a
truck. The defendant was a fireman (D). The fire department need a heavy jack to lift the
truck but the jack needed to be transported on a vehicle and the fire engine could not be
used. The vehicle usually used for transporting the jack was not available. The fire chief told
the firemen to lift the jack onto another truck and hold it there, as there was no means to
secure the jack to the truck and it was only a short distance. The jack fell, causing serious
injury to Ds leg.
Issue:
Did the council (through the fire chief) breach its duty of care to D?
Held:

There was no breach of duty.

The importance acting quickly to save the womans life (public benefit) outweighed the
need to take precautions when transporting the jack.

It was not unreasonable not to take precautions given the situation.

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 P lost.

Tucker v McCann [1948] VLR 222

Facts:
The plaintiff was a passenger on a motor bike. The defendant was driving a car and collided
with the motorcycle at an intersection. P claimed that D was negligent because D was
speeding through the intersection, which is against the law.
Issue:
If someone is breaking a law, does that automatically mean they are acting negligently?
Held:

Breaking the law is one factor that will be considered but it is not, in itself, conclusive. All
factors will be taken into account.

Rogers v Whitaker (1992) 175 CLR 479

Facts:
The plaintiff was almost blind in right eye since childhood. At age 47 she was advised to
have surgery on her left eye to remove scar tissue. The surgery caused damage to both eyes,
which left the plaintiff almost totally blind. The evidence was that there was a 1 in 14,000
chance of this condition occurring.
Issue:
Whether the defendant (the doctor) had breached his duty of care by not warning the
plaintiff of the material in the proposed course of action risk.
Held:

A person, particularly one who is believed to have expertise in an area, has a duty to warn
others about the material risk of a course of action.

A risk is material if:

o A reasonable person in the same position as the plaintiff, would be likely to attach
significance to it.
o The defendant is aware that a particular person, if warned of the risk, would be likely
to attach significance to it.

The Court also considered the factors proposed in F v R (1983) 33 SASR 189, where a
woman successfully sued her doctor when she became pregnant after an unsuccessful tubal
ligation (sterilisation), claiming she had not been warned of the possible failure of the
procedure. The failure rate was assessed at less than 1%.
o The nature of the matter to be disclosed

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 o The seriousness of the treatment
o The persons desire for information
o The temperament and health of the person
o General surrounding circumstances.

A defence to Failure to Warn

Therapeutic privilege:
A doctor may withhold information about a risk without breaching his/her duty of care where
he/she reasonably believes that disclosing the information about the risk would do the specific
patient more harm than good. The doctor must show:

That He/she subjectively believed that disclosing the information would do more harm than
good

That belief was reasonable

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CAUSATION

WRONGS ACT 1958 - SECT 51

General principles
(1) A determination that negligence caused particular harm comprises the following
elements
(a) that the negligence was a necessary condition of the occurrence of
the harm ( factual causation ); and
(b) that it is appropriate for the scope of the negligent person's liability to extend
to the harm so caused ( scope of liability ).

(2) In determining in an appropriate case, in accordance with established principles,

whether negligence that cannot be established as a necessary condition of the
occurrence of harm should be taken to establish factual causation, the court is to
consider (amongst other relevant things) whether or not and why responsibility for
the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the

person who suffered harm (the injured person) would have done if the negligent
person had not been negligent, the matter is to be determined subjectively in the light
of all relevant circumstances.

The plaintiff (P) bears the burden of proving, on the balance of probabilities both the factual
and legal harm.
It is possible for duty and breach to be made out but causation may not.

Factual Causation
S 51(1)(a) of the Wrongs Act 1958 (Vic) requires a necessary condition.

The negligent act (on the facts) must have been a necessary condition (cause) of the specific
harm
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Facts:

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 Mr Barnett went to hospital complaining of stomach pains and vomiting. The nurse called
the duty doctor who told her to send Mr Barnett home and that he should go to see his GP in
the morning. The doctor did not see Mr Barnett. 5 hours later, Mr Barnett died from arsenic
poisoning.

Issue:
Was the doctor negligent?
Held:

This case introduced the but for test

The court considered whether or not the failure to examine Mr Barnett was the cause of his
death

It found that even if the doctor had examined Mr Barnett, there was nothing that could have
been done to save his life

The hospital was not liable for his death

Note:
o Would the result have occurred but for the actions or omissions of the defendant? If
the answer is yes then the defendant is not liable in negligence.

The Court may also consider what P would have done (subjectively) but for the breach s 51(3)
Wrongs Act 1958 (Vic)

Chappel v Hart [1998] HCA 55

Facts:
Mrs Hart (P) had an operation on her oesophagus. Dr Chappel (D) did not warn Mrs Hart of
the risk that perforation of her oesophagus and infection could occur. This is what happened
and Mrs Hart lost her voice as a result. The condition was one that inevitably would have
required surgery. However, Mrs Hart stated that had she been aware of the risk she would
have performed the surgery at a later time and would have acquired the services of a more
experienced surgeon.
Issue:
Was Dr Chappels failure to warn the cause of the injury?
Held:

Dr Chappel was liable in negligence

If P had been properly warned she would have taken a different course of action, which may
have averted the harm caused.

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Even if the but for test cannot be made out, the Court may adopt a common sense approach and
still find for the plaintiff.

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

This case divided the causation test into two categories:

Fact but for test

Law public policy considerations and value judgements (common sense)

Facts:
The defendant (Stramare) parked a truck in the middle of the road, in the early hours of the
morning, in order to unload goods. March (P), who was speeding and intoxicated, drove into
the truck and suffered serious injury.
Issue:
Was D the cause of Ps injuries or did the accident occur because D was speeding and
driving while intoxicated?

Held:

But for test had limited use in this situation because there is more than one identifiable
cause

The but for test alone cannot be the only criterion on which to rely must also rely on
policy considerations and common sense

Found D was liable in negligence but that there was contributory negligence on the part of P

Liability apportioned at 70:30

Legal Causation
P must also show that Ds act or omission was the direct cause of the injury or loss suffered.
This is determined by whether or not there is an novus actus interveniens (NAI) which means
intervening act, that breaks the chain of causation.
In order to be sufficient to break the causal connection, the act must be unreasonable or
extraneous such that it is a new cause which disturbs the sequence of events (The Oropesa)

The Oropesa [1943] 1 All ER 211

Facts:

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 Two ships collided in heavy seas the Oropesa and the Manchester Regiment. It was found
that the Oropesa was responsible for the collision. The Manchester Regiment was so badly
damaged that the crew were sent onto the Oropesa using life rafts. The Manchester
Regiment sank some time later. An hour after the collision and once all other crew had been
evacuated, the captain of the Manchester Regiment and the 9 remaining crew also boarded a
life raft and headed for the Oropesa. The lifeboat capsized in the heavy seas and all 10 men
died.
Issue:
Whether leaving the Manchester Regiment and boarding the lifeboat broke the chain of
causation.
Held:

No

The action of the Captain in evacuating the ship was a natural consequence of the
emergency caused by the collision, and the Oropesa caused the collision.

To break the chain of causation there must be something "...unwarrantable, a new cause
which disturbs the sequence of events, something which can be described as either
unreasonable or extraneous or extrinsic."

Voluntary Action by a Third Party

Haber v Walker [1963] VR 339
Facts:
P was seriously injured in a car accident which was caused by the negligent actions of D. P
suffered severe brain damage and became extremely depressed. He committed suicide 18
months later. Ps wife sued for negligence on Ps behalf.
Issue:
Was there a break in the causal link? Was Ps action in committing suicide a voluntary
action or was it a direct consequence of the car accident? Was the action of P motivated by
free choice or by pressure created by the harm caused by D?
Held:

The depression was caused by the injuries and the injuries caused by D

Ds mental state deprived him of the ability to make a free choice, therefore, the suicide was
not voluntary

The chain of causation was left unbroken and P is liable for damages in negligence

Subsequent Negligent Acts Actions of the Plaintiff

Generally speaking, Ps actions will not break the chain of causation.

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 Negligence of the part of the P will instead be more relevant to contributory negligence

Ps act wont break the chain if Ds very duty was to prevent those acts from happening
(March v E & MH Stramare Pty Ltd above)

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