Tort Law

VII THE DUTY OF CARE
1. Introduction to the Concept
- in order to sustain an action in neg’ce P must establish that D had a legal obligation to take care not to cause him harm
a) THE CLASSICAL APPROACH
b) THE GENERAL DUTY OF CARE TEST
Donghue v Stephenson [1932] “theres a snail in my ginger beer!!! contents of bottle obscured by dark bottle, is bar or manufacturer liable?
- established that a duty is owed by manufacturers to ultimate consumers of products -
- effect of case was to turn negligence law into a flexible conceptual area
- Rule: you are not to injure your neighbour. One must take care to avoid acts or     ommissions that one can reasonably forsee will be likely to injure ones     neighbour. A persons neighbours are those people so directly and closely     affected by a persons act that the person ought reasonably have them in     contemplation as being so affected when a person directs his mind to the act     or ommission
- Reasonable Foreseeability Test:
1. reasonably forseeable that act/ommission will injure someone
2. neighbours are reasonably forseeable as likely to be injured by those acts and     ommissions

c) THE DEVELOPMENT OF THE MODERN LAW OF DUTY

- effect of Donghue v Stpehnson not seen unitl 1960’s when courts begain to use it to     overturn traditional ass’ns about duty of care
- Hedley Byrne v Heller [1964] to what degree is an investor owed a duty of care by accountant?
- established prfoessional liabilty for neg’t misstatement, case decised on basis of     forseebality of harm
- Anns v London Borough of Merton [1977] -                                                                                                                                                                                                                       Test:1. is there a prima facie duty of care establishable by relationship of sufficient           proximity btwn P and D that injury upon P should have been reasonably               forseeable?
2. are there any circumstances which should negative, or limit scope of duty             owed, to whom the duty is owed, or the damages that will be recognised?
- test has been expressly overturned in UK and Australia, but still followd in Cda, although in applying 2nd portion of test take into acc’t policy (so test is somewhat modified, was rejected in UK on grounds that policy must be ignored and treated as a duty?)
d) ANNS AND THE SUPREME COURT
2. Does Negligence Law Apply?
Demarco v Ungaro [1979] - lawyers can be held liable for negligence
3. Did the Defendants Conduct Give Rise to a Duty of Care?

Rule: where D has taken precautions against all forseeable events, but accident arises out of unlikely nonforseeable event, D will not be held liable
Moule v NB Elec Power Comm. (1960) - wires running through trees - pwer co had attmepted ot clear most surrounding wires, - P climbed to an unusual height, stepped on a rotton branch whcih broke, casueing him to fall, touch wires and was electrocuted held: the company did have a duty of care towards P, but sequence of events was such that Ps injury was not reasonably forseeable

Amos v NB Elec Power Comm [1977] - by climbed a poplar tree so high that his weight casued tree to sway and hit electric wires - he was electrocuted and fell from tree and knocked unconcious
held: accident was a forseebale one, therefore D held liable in negligence for not keeping trees properly trimmed, and wires proeprly insulated (distinguish from Moule on sequence of events)

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