Introduction

Negligence law came into being in 1932 at the UK’s House of Lords in the matter of Donoghue v Stevenson [1932] AC 562, a case nicknamed the "Snail in the Bottle." A legal duty was created therein, under which each person owes each other person a duty to prevent all foreseeable harm, with certain exceptions. This basic rule is quite literally derived from the religious principle of love your neighbour. The common law rule has been used in situations widely varying seriousness.

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The Australian Federal Government set up a review of the law of negligence with a view to curbing what were seen to be abuses of the rule that created socially undesirable and costly liabilities. Consequently there was legislative reform in each State and Territory.

Threshold Incapacity

Whether or not harm has occurred is normally going to be easy to prove. Medical diagnoses, repair bills, photographs, bank statements, and independent eyewitnesses give a plain account. However in response to growing difficulties during the 1980’s and 1990’s with a permissive judiciary, major law reform occurred as noted above.

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One of the key recommendations was to eliminate frivolous injury claims by placing a lower limit on the amount of personal harm a person could sue for. Thus the minimum actionable percentage of post-injury capacity has been set in State and Territory legislation. The minimums range between five percent and 15 percent. Evidence from a medical practitioner as an expert witness, therefore, is crucial.

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For an investigator, when investigating an insurance claim for personal injury, whether already paid or pending, this enumeration of harm is irrelevant. Percentage of incapacity does not come into the calculus if treatment and assistance are being paid for by an insurer whose obligations are contractual, not tortious. Percentages of incapacity are relevant when it is the party allegedly at fault, not their insurer, that is being sued.

Duty of Care

Whoever is able to exercise some control over any given risk is encumbered with a duty to protect everyone who may be exposed to that risk. The duty of care taken alone is unthinkably onerous, which makes the other considerations such as foreseeability, reasonableness of precautions and the salient features approach a social necessity. The risk may be a very small thing – an uneven footpath, a tiny spot of oil or water on the ground, an ambiguous sign, an administrative error or miscalculation that should be easy to spot. It is the small minority of cases where things go seriously wrong which the law requires be catered for, not the naturally expected cases where either the risk amounts to nothing much.

Salient Features Approach

A duty of care upon the defendant toward the plaintiff is not presumed universally. The High Court of Australia has developed a sophisticated approach to the determination of a duty of care, known as the “salient features approach.” This can be broken into four categories:

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1. Legitimate Conduct. Where a duty of care interferes with an activity that is clearly socially legitimate, such as businesses acting in competition with each other.

2. Conflict with other duties. Courts refuse to create duties of care that conflict with other existing duties such as those of the police or military.

3. Indeterminate liability. Where the amount of liability is not determined or indeterminable.

4. Insufficient relationship between plaintiff and defendant.

 

The first three categories are simple. An example of the fourth is to be found in Caltex Refineries (Qld) v Stavar [2009] NSWCA 258 where a claim was brought by Mrs Stavar against the former employers of her husband. Mr Stavar worked with asbestos when constructing and maintaining an oil refinery, working for contracting companies. He later took employment with Ampol, the owner and occupier of the refinery. When he returned home Mrs Stavar would wash his work clothes. After Mr Stavar’s employment ended, Caltex took over the refinery. There was a very distant relationship between Mrs Stavar and Caltex, which a court would ordinarily describe as a novel situation. A sufficient relationship was established with Caltex on the basis of multiple aspects of the situation and liability was found.

Foreseeability

It is necessary for a duty of care to be proven that the alleged harm should reasonably be foreseeable as a result of the act or omission at issue. The standard applied by courts in determining foreseeability is whether a reasonable person in the position of the defendant should have foreseen it. Unfortunately the reasonable person has proven to be a somewhat more lucid and thoughtful individual than one might at first think, although courts are acutely aware of the deceptive nature of hindsight and regularly try to avoid it.

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A leading case on foreseeability was Wyong Shire Council v Shirt (1980) 146 CLR 40. A waterskiing club built a jetty in a lake and the Wyong Shire Council dredged a channel from the jetty to the deeper water in the middle of the lake. Signs were erected along the channel warning of deep water. The plaintiff mistook the signs as meaning that the whole lake was deep and thus skied in the shallows. He came off the skis in water of one metre’s depth and hit his head on the bottom, becoming quadriplegic.

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The court reasoned that a risk which is not far-fetched and fanciful is real, and therefore foreseeable. One must consider the magnitude of the risk and the probability of the risk together to judge its foreseeability. In this case, the court ruled, due to the ambiguity of the signage, a reasonable man might well have read it wrongly and mistaken the position of the deep water.

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Special Vulnerability

Some persons have special vulnerabilities such as sight impairment, old age and so forth, and as a result may be far more likely than most to come to harm. While commonsense may require such people to take extra care for themselves, the law does not require this. As long as a certain form of vulnerability is reasonably common, anyone whose negligent act or omission results in harm to them is liable in the same manner. An example is Haley v London Electricity Board [1965] AC 778 where a blind man walking alone walked through inadequate barricades on a footpath and fell into a ditch. Due to the commonness of blindness, it was reasonable that the responsible workers should have foreseen the potential for such a person to walk up and miss the barricades.

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Purely Mental Harm

When dealing with a claim for pure (or primary) mental harm, the foreseeability of the harm claimed for depends on what would be suffered by a person of normal fortitude. This rule applies where the mental harm is resultant directly from the defendant’s negligence, and not from a physical injury caused by the defendant. Mental harm secondary to a physical injury is still claimable per se.

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In the dual appeal of Tame v New South Wales; Annetts v Australian Stations Pty Limited  [2002] HCA 35, Ms Tame experienced mental harm resulting from an incorrectly recorded BAC after her involvement in a collision. Being worried for her reputation as a teetotaller, she became clinically depressed. The High Court ruled that the mental harm experienced was not reasonably foreseeable and Ms Tame was not of normal fortitude.

 

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