Intellectual Property

...

Plaintiff’s child went missing on a school trip

Elements of the tort of negligence

- The defendant owed the plaintiff a duty of care

- The defendant fell below the required standard of care (breach of duty) by a negligent act or omission

- The defendant suffered damage:

- Caused by the breach of duty

- Not too remote (could reasonably have been foreseen)

Lord Atkin’s neighbor principle: The rule that you are to love your neighbor becomes in law, you must not injure your neighbor. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. In law neighbor means persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

Duty of care: a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others.

Grant v Australian woolen mill

How to establish duty of care

Relevant cases

Apply reasonable foreseeability, proximity…

Reasonable people

Seriousness of the risk

Social utility

Balancing test

Causation: but-for test

If the negligence did not occur, would the damage still incur?

Differences between Causation and remoteness: connections

Ways to get out of negligence: contribution to negligent

How negligent you are

Factors in relation to duty of care:

- the reasonable foreseeability test

- reasonable reliance by the plaintiff on the defendant

- proximity: physical, circumstantial, causal

- the vulnerability of the plaintiff

- whether the defendant has voluntarily assumed responsibility for protecting the plaintiff

- the capacity for the defendant to control the situation.

Reasonable foreseeability:

A defendant will only owe a duty of care to plaintiffs who are reasonably foreseeable. Anyone likely to be affected by the actions or omissions of the defendant will be regarded as a reasonably foreseeable plaintiff.

- A necessary (but not sufficient) condition for imposing a duty of care.

“The recognised cases” – duty of care owed by:

- owner of premises to persons invited

- manufacturer – consumer

- Grant v Australian Knitting Mills (1935) 54 CLR 49.

- employer – employee

- workplace accidents are now largely dealt with under the Workers Compensation Legislation

- school – pupil

- driver of vehicle – other road users

- Does duty of care in negligence extend to the family member of the injured person? (Jaensch v Coffey (1984) CLR 549).

- occupier of land – user of land

- Does duty of care extend to protecting the victim from criminal acts of third party? (Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254).

- hospital – patients

professionals – clients