Reasonable Foreseeability at the Duty Breach and Remoteness Stage - Essay Example

Name Course Instructor Date Torts- Reasonable Foreseeability at the Duty Breach and Remoteness Stage Whether In 1983 Glass JA’s Analysis Was Correct or Helpful in Identifying the Different Meanings of Reasonable Foreseeability at the Duty, Breach and Remoteness Stages The tort of negligence can only be brought by a person to whom the duty of care is owed by the defendant. For the claimant to be successful the following must be proved: Existence of a duty of care owed by the defendant to the plaintiff; Breach of the duty by the defendant; and damage or harm to the plaintiff arising from the duty to take care. The damage must not be too remote. The duty to care was articulated by Lord Atkins in Donoghue V. Stevenson 1932 AC 562. He stated that the rule that you must love your neighbor translates into law to mean that one must avoid acts and omissions which one can reasonably foresee as likely to injure a neighbor. A neighbor in law is someone who I likely to be directly and closely affected by a person’s act that the person must always have them in contemplation when directing the mind to an act or omission (Barker, 215). Lord Atkins’s statement established the proximity test and the foreseeability test in negligence. In Minister Administering Environmental Planning and Assessment Act 1979 V. San Sebastian Pty Ltd (1983) 2 NSWLR, Judge Glass J, A. of the New South Wales court of Appeal stated that there was an emerging recognition that in establishing the tort of negligence, the foreseeability inquiry at the duty, breach and remoteness stages raises divergent issues which decline progressively from the general to the particular. To determine whether Glass J, was correct we will have to analyze past case law on proximity and foreseeability Even a small risk of harm maybe treated by the court as reasonably foreseeable. In Chapman V. Hearse, Chapman had negligently collided with another vehicle as a result of which he was flung onto the road. Dr.Cherry was on the road and stopped to assist Chapman. While attending to Chapman, the vehicle Hearse was driving hit and killed the doctor. At the trial, both Chapman and the Hearse were found to be liable. Chapman appealed on the grounds that he did not owe the doctor any duty of care as the events were not reasonably foreseeable. The court dismissed the appeal and held that Chapman’s negligence in causing the collision in the first place was foreseeable and had contributed to Dr. Cherry’s death (Abadee, 61). In Overseas Tankship (UK) Ltd V. Morts Docks and Engineering Co Ltd (The Wagon Mound No 1) (1961) AC 388, the defendant repaired and build ship in a wharf. The plaintiff had chartered the “Wagon Mound” and it was anchored at another wharf several metres away. On the night of 30th October 1951, large quantities of oil leaked from the “Wagon Mound” and spread to the next wharf. The oil was ignited by operations in the wharf and the fire caused a lot of damage to the equipment of the defendant. The defendants lost a claim for negligence as defendants could not be held for ignition of oil which was not reasonably foreseeable (Markesinis, 23). In Overseas Tankship (UK) Ltd V. The Miller Steamship Co Pty Ltd( The Wagon Mound No. 2) (1967) 1 AC, another case was brought against the company on basis of similar circumstances but on grounds that the operators of the “Wagon Mound” were negligent for the leakage and subsequent escape of the oil. They won the suit since they were able to prove that the danger of spillage of oil was reasonably foreseeable as the defendants were aware of the risks that could be caused by spillage of the oil (Markesinis, 24). The proximity upon which the duty to take care established in Donoghue V. Stevenson rests is dependent on proof that the plaintiff and defendant are closely related to each other to the extent that there is a reasonable foreseeability that the careless conduct of any type on part of the defendant may cause damage or harm of some kind to the plaintiff or the plaintiff’s property as was held in Chapman V. Hearse (1961) 106 CLR 112. In The Wyong Shire Council V Shirt (1980) 29 ALR 217, it was held that determination of breach requires proof that there was a reasonably foreseeable possibility that the carelessness exhibited by the defendant would in some way damage the plaintiff’s property or the plaintiff’s property (Barker, 216). In Mount Isa Mines Ltd V. Pusey (1970) 125 CLR, it was held that the remoteness test can only be established if the plaintiff proves that the type of damage S/he has suffered or experienced was reasonably foreseeable as a result of carelessness exhibited by the defendant in his or her conduct (Debus, 115).According to Glass J.A the plaintiff must pass through three hoops in order to establish commission of negligence successfully. The first hoop is narrow; the second hoop is narrower than the first, while the third hoop is the narrowest among them. The plaintiff who successfully passes through the third hoop demonstrates his or her ability to pass through the first and the second hoops. This raises the question of whether it is really necessary to consider the issues of foreseeability at the duty and breach stages of determination of the tort of negligence. Glass, J. was correct in his identification of liability with regard to each test. Whether the Meaning Which He Identified At the Duty Stage, Turned Out to Be Justified or Not in Subsequent High Court Decisions About the Duty In Shirt V. Wyong Council (1978) NSWLR 631 (CA), Glass JA drew a distinction between the duty and breach stages. He had ruled that determination of existence of a duty of care was to be given priority over determination as to whether breach of that particular duty had occurred. The case was appealed and in Wyong Shire Council V. Shirt, Mason J. upheld the distinction promulgated by Mason J when he ruled that the concept of foreseeability involved a higher degree of inquiry at the duty stage than at the breach stage. A jury was involved in Shirt’s case and the concept of “reasonable foreseeabilty” connotes a different meaning when it is considered by the judge as a matter of law at the duty stage and when it is considered by the jury as a matter of fact at the breach stage. The distinction has become deeply entrenched in the judicial system even in non-jury trials (Chesterman, 96). Courts still insist on conducting all the three tests of negligence together and require that the narrowest test must be passed to successfully establish the tort of negligence. In Jolley V Sutton London Borough Council, Lord Hoffman stated that unless an injury is of a nature that is reasonably foreseeable, the narrowest test of foreseeability must be applied to determine whether it falls within the scope of a duty of care or it is too remote. Foreseeability is the first requirement of the test of existence of a standard of care. For the defendant to be liable, the risk caused by his or her actions must be foreseeable (Markenisis, 26). In Wyong Shire V. Shirt, Mason J ruled that the likelihood of risk occurring and foreseeability of the risk are two different things. Consequently when a risk is said to be foreseeable, it is not a reference to the probability or improbability that the risk will occur; it is an assertion that the risk should not be fanciful or far-fetched. The test has been relied upon in subsequent cases. In New South Wales V. Faby, Heydon J who had been a major critic of the definition of the foreseeability test in Wyong SC V. Shirt welcomed the idea that the definition should be argued (Debus, 118). However majority of the court held that there was no need to reconsider the decision in Shirt as the risk that psychiatric injury would occur to the police officer was not only foreseeable ; it was actually foreseen. The majority of the court also went ahead to confirm the validity of the definition in the shirt case. Mason J’s ruling remains the most authoritative statement on foreseeability at common law as was confirmed in cases such as “ Psychiatric Workplace Injury and Breach of Duty: New South Wales V. Faby”; and in Erwin V. Iveco Trucks Australia Ltd. Whether the Meanings Which He Identified at The Breach and Remoteness Stages Were Adopted Or Modified In The Civil Liability Act 2002 As Amended (WA). Mason J and Glass J.A’s statements have been incorporated in the Civil Liability Act 2002 of New South Wales which contain an express provision requiring that risk must be foreseeable at section 58 (1) (a) and that the risk must not be insignificant under section 58 (1) (b)(Villa, 43). In Shaw V. Thomas (2010) Aust Torts Reps, the judges agreed that the requirement that risk should not be insignificant imposed a demanding and rigorous standard. The phrase that risk must not be fanciful or farfetched was adopted from Recommendation 28 of The IPP report by the legislature (Abadee, 67). In Wyong Shire Council V. Shirt, Mason J. further stated that the court must consider the response of a reasonable person to a foreseeable risk. He set out what has come to be known as the “calculus of negligence” which in essence is the number of factors which are weighed upon by the reasonable person in deciding whether or not to respond and if so, the degree or extent of his or her responsible(Barker, 218). The IPP report contained findings that judges often overlooked the response of a reasonable person and often reached the conclusion that by the mere fact that the risk was foreseeable; the defendant had negligently failed to take precautions to avoid the risk. The report recommended that it is necessary to have a statutory provision stipulating that mere failure to take precautions against a foreseeable risk of harm does not render a defendant negligent(Villa, 45).The recommendation is now embodied in section 5B(1) (c ) of The Civil Liability Act. Section 5B (2) of the act provides that in determination of the fact whether a reasonable person would have taken precautions to avoid a risk of harm, the court must put the following factors into consideration; probability that if care were not taken the risk would still occur; the seriousness or gravity of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that creates the risk of harm (Barker, 220). In Waverley Council V. Ferreira (2005) Aust Torts Reps 81-818 observed that the provisions of section 5 B (2) are a reiteration of the remarks made by Wyong Shire Council V Shirt. They said that the provision was enacted into law so that courts could focus more on whether the requirement that precautions be taken against a particular risk was reasonable and to prevent conflation of the concept of foreseeability. In the face of a foreseeable risk, a reasonable [person does not always take precautions in the face of the risk. In J & V Pesl V. Ray Smith Tractors 2007 Aust Torts Reports 81-883 (NSW CA), it was held that in certain circumstances, the retailer of machinery might not be able to do anything to bring updated software warnings to the attention of a customer who had bought the machinery several years ago. In Alinta Gas Networks Pty Ltd V. James (2007) Aust Torts Reports 81-900 (WA CA), it was held hat although it was foreseeable that an authorized person may move pipes from the road side to the roadway, reasonable persons would not take any precautions against the risk. Glass J, A’s statement has therefore played a major role in development of tort jurisprudence in New South Wales. Works Cited Abadee, Alister. Professional Liability: Tuesday 4 December 2007. Kensington, N.S.W.: University of New South Wales, Faculty of Law, Centre for Continuing Legal Education, 2007. Print. Barker, Kit. The Law of Torts in Australia. South Melbourne: Oxford University Press, 2012. Print. Chesterman, M R. Background Paper: Proposals to Modify the Common Law. Sydney: New South Wales Law Reform Commission, 2008. Print Debus, Robert. "Tort Law Reform in New South Wales: State and Federal Interactions." University of New South Wales Law Journal, the. 25.3 (2002): 825-830. Print. Harare, Abraham. The Place of Negligence in the Law of Torts. Sydney: Law Book Co. of Australasia, 2010. Print. Markesinis, Reginald. Tort Law. Oxford: Clarendon Press, 2011. Print. Samuels, Gordon. Tort and Personal Injury. Sydney: Australian Insurance Law Association, 2008. Print. Simons, Theo. Negligence and Economic Torts: Selected Aspects. Sydney: Law Book Co, 2010. Print. Villa, Dominic. Annotated Civil Liability Act 2002, New South Wales. Pyrmont, N.S.W: Law book Co, 2004. Print. Williams, Lewis R. "Negligence: Proximate Cause: Foreseeability of Negligent Intervening Act." Michigan Law Review. 49.2 (2007): 288-290. Print. Read More