Duty+of+Care


 * à Starting point – [|s.43 Wrongs Act]**
 * Defines ‘negligence’ – failure to exercise reasonable care.

There are some situations that automatically give rise to a DOC:
 * __Where there is settled law and DOC exists:__**
 * Duty of a car driver to other road users: Chapman v Hearse; Cook v Cook.
 * Doctors owe a duty of care to their patients.
 * Employers owe a duty of care to their employees: Fairchild

There are some situations that do not give rise to a DOC, because the court feels that public interests are more important:
 * __Where there is settled law and NO DOC exists:__**


 * à Barristers and Solicitors**
 * Barristers and Solicitors do not owe a DOC to their clients for work they do in court (extends to work closely connected with the conduct of a case in court that it can fairly be said to effect the way the case is conducted in court): D’orta Eicheneister v Victorian Legal Aid**.**
 * Barristers owe not DOC to their clients because: (1) it would interfere with their duty to the court; and (2) it would provide losing parties with a way of impugning judicial decisions which go against them: Giannarelli v Wraith.


 * à Armed Forces**
 * Armed forces do not owe a DOC during war time operations against the enemy: Shaw, Saville & Albion Co v Commonwealth**.**


 * à Parents and Children: //Robertson v Swincer//**
 * A parent owes her child a duty of care regarding //any positive act// she performs. However, the duty does not extend to omissions, even if the failure to act leads to the child sustaining injury.
 * There is no liability for failure to take action because: (1) too demanding on parents and unrealistic; (3) lack of clear standards on what constitutes appropriate parenting; and (3) deterrence effect on relatives and friends.

Was it reasonably foreseeable that carelessness on the Ds part in engaging in the activity would harm the P (or class of Ps) in some way?: Donoghue v Stevenson
 * __Where there is no settled law__** à **REASONABLE FORESEEABILITY**


 * à Reasonably Foreseeable =**
 * Was it RF that Ds actions were ‘not unlikely’ to cause the outcome to P: Caterson v Commissioner of Railways **per Barwick CJ**
 * When there is a ‘real possibility’ rather than a fanciful or far-fetched one: Sullivan v Moody
 * Its not necessary that the precise sequence of events be foreseen – its sufficient if it appears that injury to a class of persons of which P was one might have been foreseen as a consequence: Chapman v Hearse (e.g. it was RF that someone would come to the man’s aid, and in doing so may be hurt).


 * à Exception:**
 * Palsgarf v Long Island Railway (it was not reasonably foreseeable that negligently knocking an unmarked parcel could lead to an explosion, which would injure someone standing at the other end of the platform).


 * __Vulnerable Plaintiffs__**
 * à Specific Individuals and Classes:**
 * It must be reasonably foreseeable that the P specifically; or class of P, of which the P is a member might be injured: Bourhill v Young.
 * Note:** Decision of //Bourhill v Young// may be reversed today.

Where the act in question is incapable of injuring a normal person, no duty arises when a person who is abnormally sensitive is affected. However, if the D knows that the specific abnormal person will be affected, they may have a duty to take special precautions to protect that person: Levi v Colgate-Palmolive.
 * à Abnormal Sensitivity:**
 * No DOC is owed to allergy sufferers: Levi v Colgate-Palmolive
 * A duty of care is owed to blind people: Haley v London Electrical Board
 * If it is RF that a sensitive person may be hurt, there will be a duty of care: Hayley v London Electrical Board.
 * Note:** The courts have increasingly shown a tolerance to diversity and sensitivities, so decisions may have changed. Depends on the state of knowledge at the time.

If a P suffers physical injury or damage to property as a direct result of a positive act performed by the D, RF alone is not enough to establish a DOC.
 * __Where Reasonable Foreseeability is not sufficient:__**

In cases of nervous shock or economic loss, or where the harm is not a direct result of the Ds act or is the result of an omission, something further is needed above the reasonable foreseeability test: Sullivan v Moody.


 * __Salient Features Approach:__** Sullivan v Moody
 * Floodgate argument – will allowing this open a floodgate of litigation?
 * Illegal Activity – if the P were engaged in illegal conduct, the court is less likely to find a duty of care existed: Garla v Preston
 * Indeterminate liability: Hill
 * Assumption of Responsibility by the D – Did the D create an assumption in the P that they were responsible? Did the P rely on the assumption? Bryan
 * Proximity – physical, circumstantial (e.g. employee/employer) and/or causal (closeness or directness of the causal connection between the Ds act and the Ps injury): Sutherland Shire Council v Heyman.
 * Control – Did the D control the situation? If they did, it is more likely that there was a duty.
 * Legitimate Business Activity – will the imposition of a duty impinge on legitimate business activity of D?
 * Vulnerability – How vulnerable was the P? Could they have done more to protect themselves?
 * Area of law – Is there a better area of law to deal with the situation?
 * Voluntary Assumption of Risk – Did the P assume the risk in what they were doing?
 * Duties of the D – Would the imposition of a duty here conflict with an existing duty that the D has?
 * Relationship between P and D
 * Conflict of duties: Hill
 * Conflict of laws: Moody


 * Back to Torts B**
 * Next: Breach of Duty**