References: [2002] HCA 35, [2002] 211 CLR 317, [2002] 191 ALR 449, [2002] 76 ALJR 1348
Links: Austlii
Coram: Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Ratio: Austlii (High Court of Australia) Tame v New South Wales
Negligence – Duty of care – Psychiatric injury – Motor accident – Clerical error by police constable in recording driver’s blood alcohol content – Psychotic depressive illness caused by driver learning of mistake – Whether duty of care owed by police constable to driver – Whether psychiatric injury reasonably foreseeable – Whether sole determinant of duty – Other control mechanisms for imposition of duty – Normal fortitude – Sudden shock – Direct perception – Immediate aftermath.
Annetts v Australian Stations Pty Limited
Negligence – Duty of care – Psychiatric injury – Death of child – Assurances of constant supervision of child made by employer to parents – Whether duty of care owed by employer of child to parents – Whether psychiatric injury reasonably foreseeable – Whether sole determinant of duty – Other control mechanisms for imposition of duty – Normal fortitude – Sudden shock – Direct perception – Immediate aftermath.
This case is cited by:

• Cited – Zurich Insurance Plc UK Branch -v- International Energy Group Ltd SC (Bailii, [2015] UKSC 33, [2015] Lloyd’s Rep IR 598, [2015] WLR(D) 233, [2015] 2 WLR 1471, [2016] AC 509, Bailii Summary, WLRD , UKSC 2013/0057, SC, SC Summary, SC Summary Video)
  A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .

(This list may be incomplete)

Last Update: 01-Jul-16
Ref: 566221

References: [2003] HCA 4, (2003) 212 CLR 511, (2003) 195 ALR 412, (2003) 77 ALJR 558, (2003) 24 Leg Rep 2
Links: Austlii
Coram: Gleeson CJ, Gaudron, Mchugh, Gummow, Kirby, Hayne and Callinan JJ
Ratio: Austlii (High Court of Australia) 1. Appeal allowed in part
2. Paragraph 2 of the order of the Court of Appeal of New South Wales made on 23 April 2001 set aside, and in its place, order that the judgment entered in the District Court on 16 April 1999 be wholly set aside and that there be a new trial.
3. Appellant to pay the costs of the appeal to this Court.
4. Costs of the new trial to abide its outcome.
Callian J (majority) said: ‘Education authorities do not owe to children for whose education they are responsible (absent relevant contractual provision to the contrary) a particular or unique non-delegable duty of care, in practical terms, giving rise to absolute liability. There is no doubt that the ordinary standard of care in the case of such authorities is a very high one. Their duties include the engagement of reliable, and carefully screened, properly trained employees, and the provision: of suitable premises; an adequate system for the monitoring of employees; and, I would think, because, regrettably, the incidence of sexual abuse seems to have been more common than had previously been thought, an efficient system for the prevention and detection of misconduct of that kind. In saying what I have, I do not intend to state comprehensively a catalogue of the duties to which the relationship of education authority and pupil may give rise. But I do agree with the Chief Justice that absent fault on the part of an education authority, it will not be personally liable in situations of the kind with which these cases are concerned’.
McHugh J. (minority: he alone would have found non-delegable duties in the particular circumstances) said: ‘a State education authority owes a duty to a pupil to take reasonable care to prevent harm to the pupil. The duty cannot be delegated. If, as is invariably the case, the State delegates the performance of the duty to a teacher, the State is liable if the teacher fails to take reasonable care to prevent harm to the pupil . . The duty arises on the enrolment of the child. It is not confined to school hours or to the commencement of the teachers’ hours of employment at the school. If the authority permits a pupil to be in the school grounds before the hours during which teachers are on duty, the authority will be liable if the pupil is injured through lack of reasonable supervision. In Geyer v Downs this Court held that the education authority was liable for injuries suffered by a pupil playing in the school grounds at about 8.45am although teachers at the school were not required to be on duty at that time . . The duty extends to protecting the pupil from the conduct of other pupils or strangers and from the pupil’s own conduct The measure of the duty is not that which could be expected of a careful parent.
Murphy and Aickin JJ rejected the parent analogy in Geyer v Downs saying that it was unreal to apply that standard to ‘a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of thirty or more children’.
This case is cited by:

• Cited – Woodland -v- The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
  The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .

(This list may be incomplete)

Last Update: 30-Jun-16
Ref: 445625

References: (2002) 211 CLR 540, [2000] FCA 1099
Links: Austlii
Coram: Gaudron J
Austlii (Federal Court of Australia) TORT – Negligence – non-feasance by public authorities – non-exercise by local government council and State government to minimise faecal contamination of lake where oysters grown commercially – oysters carrying hepatitis A virus – consumer of oysters contracting hepatitis A – whether duty of care owed to be discharged by exercise of statutory powers – causation – whether local government council and State government required to carry out sanitary survey of shore of lake.
TORT – Negligence – whether duty of care owed by commercial farmer of oysters to consumers of them breached where oysters carrying hepatitis A virus due to faecal contamination of lake in which oysters grown – oyster farmer’s depuration plant not shown to be working unsatisfactorily – whether discharge of oyster farmer’s duty required it to carry out sanitary survey of shore of lake or to urge public authorities to do so – causation of oysters contaminated with hepatitis A virus as a result of faecal contamination of lake where oysters grown – whether circumstances show it was unreasonable for consumer to rely on skills or judgment of grower – whether oysters were as fit for purpose as reasonable to expect.
Gaudron J: ‘Although different concepts inform the law of negligence, ordinarily there is a duty to warn only if there is a foreseeable risk that a person will be led to believe that something is safe when it is not.’
McHugh J: ‘The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred). If the duty is formulated in specific terms, the issue on breach is whether the duty has been performed in accordance with the terms of the duty as formulated. But, as Wyong Shire Council v Shirt [footnote reference to (1980) 146 C.L.R. 40 at 47-48, per Mason J., Stephen and Aickin J.J. agreeing] shows, the question of breach is far more complex than an affirmative or negative answer to the question whether the defendant carried out the duty as formulated. It involves evaluating and weighing a number of competing considerations.’
This case is cited by:

• Cited – McTear -v- Imperial Tobacco Ltd OHCS (Bailii, [2005] ScotCS CSOH_69, Times 14-Jun-05, Scottish CS)
  The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
  Held: The action failed. The plaintiff had not . .

(This list may be incomplete)
Last Update: 29-Feb-16 Ref: 226698

References: [2008] 3 NZLR 725, [2008] NZSC 45
Links: Nzlii
Coram: Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Nzlii Supreme Court of New Zealand – [1] The victim of a criminal assault claims exemplary damages from the Attorney-General for claimed failures of the Probation Service to exercise reasonable care in the supervision of the parolee who seriously injured her. Her claim has been struck out in the Court of Appeal on the basis that it discloses no cause of action because no duty of care was owed by the Probation Service to her. A further argument that the claim should be struck out on the basis that exemplary damages are not available for negligently causing personal injury did not have to be addressed in the Court of Appeal, because it took the view that no duty of care arose. Whether exemplary damages can be claimed, if a duty of care cannot be excluded, remains a live preliminary issue but is not disposed of in this judgment because the parties did not have time at the hearing to address the point. The question for determination now is whether the Probation Service may owe a duty of care in law to the victim. As the Court is unanimous in resolving this question in favour of the plaintiff, so that the basis on which the claim was struck out in the Court of Appeal falls away, it will be necessary to hold a further hearing on the availability of exemplary damages, if the parties require that matter to be determined before trial. Because the parties may wish to reconsider whether the availability of exemplary damages is suitable for determination before trial, in the light of the discussion in the reasons of the Court about the principles upon which strike-out is appropriate, the appeal is formally adjourned so that memoranda can be filed within one month on that point. If further hearing is required, a fixture will then be made. If further hearing is not necessary, formal orders reinstating the proceedings will be made.
[2] Whether the Probation Service may owe a duty of care to the victim of a criminal assault by a parolee under its supervision is not resolved by New Zealand authority. It falls to be determined in this Court on a strike-out basis, ahead of determination of the facts and before completion of pre-trial processes, including finalisation of the pleadings. Whether the circumstances relied on by the plaintiff are capable of giving rise to a duty of care is the question for the Court. If a duty of care cannot confidently be excluded, the claim must be allowed to proceed. It is only if it is clear that the claim cannot succeed as a matter of law that it can be struck out.
[3] We are of the view that the claim is not so clearly untenable as to be suitable for peremptory determination on untested facts. We are unable to agree with the majority in the Court of Appeal that it should be struck out. We consider that strike-out is premature for reasons similar to those that persuaded Hammond J to dissent in the Court of Appeal.
[4] Although we agree with Tipping J that the claim should not be struck out as disclosing no duty of care, we differ from him in the approach to be taken in ascertaining whether a duty of care can arise in these circumstances. Tipping J suggests that a duty of care to prevent harm inflicted by a third party arises only where the plaintiff, either as an individual or as a member of an ‘identifiable and sufficiently delineated class’, is known to the defendant to be ‘the subject of a distinct and special risk’ of the harm suffered because of particular vulnerability. [1] Requiring such test to be satisfied in all cases where harm results from third party intervention seems to us to introduce undesirable relational rigidity into the general organising principles for the tort of negligence applied in New Zealand in such cases as Bowen v Paramount Builders (Hamilton) Ltd [2] and South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd, [3] in application of Donoghue v Stevenson [4] and Anns v London Borough of Merton. [5] Whether there is sufficient relationship of proximity between the person injured by a parolee and the Probation Service supervising the parolee turns on a broad inquiry without controlling emphasis on the plaintiff’s membership of an ‘identifiable and sufficiently delineated class’.
[5] Two factors are likely to be key at trial. The first is the background of the Probation Service’s statutory obligations of supervision and control over the parolee, which included the power to control where he worked. The statutory obligations and powers are imposed in substantial part for the protection of the public. We do not think it can be confidently said at this preliminary stage that in carrying out its statutory responsibilities the Probation Service cannot owe a duty of care to the plaintiff, whether as fellow employee of the parolee (the basis upon which her counsel puts it) or indeed as a member of the public. The second factor is the knowledge held as to the risk the parolee presented and the means reasonably available to the Probation Service for avoiding harm through realisation of such risk. Cardozo CJ famously said of duty of care in negligence that ‘risk imports relation’.[6] Because the facts bearing on risk and its avoidance are not yet known, and in the absence of any other clear impediment to the existence of a duty of care (such as might be found if such a duty was inconsistent with the statutory functions of the Probation Service), we consider that to strike out the proceedings would be premature.
This case cites:

• Cited – Smith -v- Leurs ((1945) 70 CLR 256, [1945] HCA 27, Austlii)
  High Court of Australia – The parents of a child denied liability for harm caused by their son using a shanghai.
  Held: Dixon J said that: ‘It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to . .

(This list may be incomplete)
This case is cited by:

• Cited – Michael and Others -v- The Chief Constable of South Wales Police and Another SC (Bailii, [2015] UKSC 2, Bailii Summary, [2015] 2 WLR 343, [2015] Med LR 171, [2015] 2 All ER 635, [2015] HRLR 8, UKSC 2013/0043, SC, SC Summary, SC Videoa Summary)
  The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .

(This list may be incomplete)
Last Update: 20-Dec-15 Ref: 556829

References: (1945) 70 CLR 256, [1945] HCA 27
Links: Austlii
Coram: Latham CJ, Starke, Dixon and McTiernan JJ
High Court of Australia – The parents of a child denied liability for harm caused by their son using a shanghai.
Held: Dixon J said that: ‘It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers. The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature.’
This case is cited by:

• Cited – Couch -v- Attorney-General (Nzlii, [2008] 3 NZLR 725, [2008] NZSC 45)
  Nzlii Supreme Court of New Zealand – [1] The victim of a criminal assault claims exemplary damages from the Attorney-General for claimed failures of the Probation Service to exercise reasonable care in the . .
• Cited – Michael and Others -v- The Chief Constable of South Wales Police and Another SC (Bailii, [2015] UKSC 2, Bailii Summary, [2015] 2 WLR 343, [2015] Med LR 171, [2015] 2 All ER 635, [2015] HRLR 8, UKSC 2013/0043, SC, SC Summary, SC Videoa Summary)
  The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .

(This list may be incomplete)
Last Update: 16-Dec-15 Ref: 556830

References: (2008) 51 MVR 55, [2008] QCA 283
Links: Austlii
Coram: McMurdo P, Holmes JA and Mackenzie AJA
(Supreme Court of Queensland – Court of Appeal) TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OTHER CASES – plaintiff child was a member of a tae kwon do academy in Townsville – class included children and adults under control of instructor – instructor took class to nearby beach to train – class ran along the side of the road in bare feet at dusk – plaintiff child hit by car while crossing road – sixth defendant was owner-operator of tae kwon do academy – whether the sixth defendant owed the plaintiff a non-delegable duty of care
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – plaintiff pleaded in statement of claim that the sixth defendant was the owner-operator of the tae kwon do academy – sixth defendant admitted that paragraph of the statement of claim in his defence – sixth defendant was refused leave to withdraw that admission – sixth defendant gave evidence at trial that other persons had elements of control over the academy – other evidence led at trial supported admission – whether trial judge could act upon admission
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – sixth defendant made admission in pleadings that he was the owner-operator of the tae kwon do academy that the plaintiff attended – sixth defendant’s application to withdraw admission refused – sixth defendant did not lodge appeal against decision until after final judgment was delivered following the trial – whether sixth defendant should be granted an extension of time to appeal against interlocutory decision – appropriate time to appeal interlocutory decision
This case is cited by:

• Cited – Woodland -v- The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
  The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .

References: [2003] SCC 51, [2003] SCJ No 51, [2003] 2 SCR 403
Links: Canlii
Coram: McLachlin CJ and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ
Canlii (Supreme Court of Canada) Torts – Liability – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Whether government negligent – Whether government vicariously liable for torts of foster parents – Whether government liable for breach of non-delegable duty – Whether government liable for breach of fiduciary duty.
Limitation of actions – Torts – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Whether tort actions barred by Limitation Act – Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(2), 7(1)(a)(i).
Torts – Damages – Intentional torts – Abuse of children by foster parents – Whether government can be held liable for harm children suffered in foster care – Proper basis for assessing damages for child abuse by parent or foster parent.
The court considered the difficulty of setting down a unifying principle of the idea of a non-delegable duty: ‘It may be that there is no single common law concept of non-delegable duty. Instead, the phrase seems to have been used to describe a number of situations in which special, non-delegable duties arise. If this is correct, then rather than seeking to state the doctrine in terms of a single principle, we should look to the different situations in which such duties have been found – an approach consonant with the traditional methods of the common law. In Lewis (Guardian ad litem of) v. British Columbia, 1997 CanLII 304 (SCC), [1997] 3 S.C.R. 1145, at para. 20, Cory J. suggested that these different situations comprise a ‘spectrum of liability’, and that ‘[w]ithin that spectrum there are a variety of legal obligations which may, depending on the circumstances, lead to a principal’s liability for the negligence of an independent contractor.’
This case is cited by:

• Cited – Woodland -v- The Swimming Teachers’ Association and Others QBD (Bailii, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
  The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .

References: ,
Links: Austlii
Coram: Stephen, Mason, Murphy, Aickin and Wilson JJ
(High Court of Australia) Mason J: ‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not of itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.’
Held: ‘Lying at the heart of this matter, however, is the necessity to ensure, as far as possible, that consumers are not unnecessarily or, through no fault of their own, unknowingly exposed to the risk of injury or other adverse consequences being suffered by reason of their use of products available to them in the marketplace.’ and ‘As a general proposition it appears to me to be obvious that where possible consequences of the contraction of a condition include death, even though the risk of any contraction may be very small, a potential purchaser is, at least, entitled to know of the existence of that risk and to be able to choose whether or not it will be accepted.’
This case is cited by:

• See Also – McTear -v- Imperial Tobacco Ltd OHCS (Bailii, [2005] ScotCS CSOH_69, Times 14-Jun-05, Scottish CS)
  The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
  Held: The action failed. The plaintiff had not . .