Category Archives: Negligence

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 | 25 May 1966

ON THIS DAY in 1966, the Privy Council delivered Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No 2) [1966] UKPC 1 (25 May 1966).

http://www.bailii.org/uk/cases/UKPC/1966/1.html

A person is negligent if they fail to prevent a real risk that is reasonably foreseeable. A real risk is one in the mind of a reasonable person “which he would not brush aside as far-fetched”. This does not depend on the actual risk of occurrence.

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Negligence – Duty of care – Safe system of work – Work injuries

Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

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Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20 | 13 May 1986

ON 13 MAY 1986, the High Court of Australia delivered Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20; (1986) 160 CLR 301 (13 May 1986).

“Negligence – Master and servant – Duty of care – Safe system of work – Employer’s duty to provide – Scope of duty – Contributory negligence.”

Braistina was a metal trades worker employed by Bankstown Foundry. As part of his duties he drilled holes in cast iron pipes weighing about 60 pounds. He was required to lift about 40 pipes an hour from a pallet onto a drilling machine and then onto another pallet after the drilling.

On a particular shift, Braistina injured his neck after drilling about 115 pipes over a three hour period. Medical evidence showed that the lifting and twisting made the risk of injury foreseeable and not far fetched and fanciful.

A hoist was readily available but not used. The use of the hoist was not impracticable, caused no undue expense or nor any difficulty. Had the hoist been used the risk of injury would have been eliminated.

The court held that in the circumstances, a prudent employer would reasonably require that the hoist be used.

An employer must take reasonable steps to enforce a safe system of work, otherwise they are in breach of their duty of care to the employee and will be found negligent and liable for the injury, loss and damage suffered by the employee.

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Tabet v Gett [2010] HCA 12 | 21 April 2010

ON 21 APRIL 2010, the High Court of Australia delivered Tabet v Gett [2010] HCA 12 (21 April 2010).

“NEGLIGENCE – Medical negligence – Damage – Loss of chance – Appellant suffered irreversible brain damage – Respondent’s delay in providing proper treatment breached duty of care owed to appellant – Where not established on balance of probabilities that breach caused any part of brain damage – Where breach at most caused loss of less than 50% chance of better outcome – Whether law of tort recognises or should recognise loss of chance of better outcome as damage giving rise to liability in negligence – Relevance of policy considerations concerning extension of liability in medical negligence cases.

NEGLIGENCE – Medical negligence – Damage – Loss of chance – Trial judge assessed as 40% the lost chance of better outcome – Court of Appeal found evidence supported no more than 15% chance of better outcome – Whether evidence sufficient to establish loss of chance of better outcome – Whether inference could properly be drawn from evidence as to loss of chance.

WORDS AND PHRASES – “balance of probabilities”, “damage”, “gist of the action”, “loss of a chance of a better outcome”, “standard of proof”.”

http://www.austlii.edu.au/au/cases/cth/HCA/2010/12.html

The law of negligence does not allow for damages to be awarded when the breach of duty of care causes less than a 50% chance of a better outcome.

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Nagle v Rottnest Island Authority [1993] HCA 76 | 21 April 1993

ON 21 APRIL 1993, the High Court of Australia delivered Nagle v Rottnest Island Authority [1993] HCA 76; 177 CLR 423; (1993) Aust Torts Reporter 81-211; (1993) 112 ALR 393; (1993) 67 ALJR 426 (21 April 1993).

Nagle became a quadriplegic after diving into a swimming hole and striking his head on a submerged rock.  It was known to Rottnest that visitors engaged in this activity.

Rottnest was liable to pay Nagle damages as it had breached its duty of care to Nagle to warn him of the risk of submerged rocks.

The risk was foreseeable: “Whether small or not, the risk was certainly not far-fetched or fanciful.”

The accident was cased by a failure on the part of Rottnest to erect a sign.

The Civil Liability Acts have since altered the obligations and responsibilities of public authorities and occupiers in such situations.

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Hawkins v Clayton [1988] HCA 15 | 8 April 1988

ON 8 APRIL 1988, the High Court of Australia delivered Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539 (8 April 1988).

A firm of solicitors was held to be negligent by failing to take reasonable steps to locate an executor (a non-client) following the death of a testatrix (a client whose will they prepared and retained for safe keeping) for some six years after the testatrix’s death.  The solicitors were held to be liable to pay damages for the loss suffered by the executor (who was also a residuary beneficiary) in not being able to manage the estate during the period of delay.

http://www.austlii.edu.au/au/cases/cth/HCA/1988/15.html

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Miller v Miller [2011] HCA 9 | 7 April 2011

ON THIS DAY in 2011, the High Court of Australia delivered Miller v Miller [2011] HCA 9 (7 April 2011).

A joint illegal enterprise (eg joyride) negates a duty of care (driver to passenger) thereby creating a defence of illegality on the part of the driver/insurer: see Gala v Preston [1991] HCA 18. However, in Miller v Miller the High Court held that the plaintiff (injured passenger) was owed a duty of care because she withdrew from the enterprise by asking to be let out of the car and there were no reasonable steps available to her to prevent the continuation of the offence.

http://www.austlii.edu.au/au/cases/cth/HCA/2011/9.html

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Miller v Jackson [1977] EWCA Civ 6 | 6 April 1977

ON THIS DAY in 1977, the England and Wales Court of Appeal delivered Miller v Jackson [1977] EWCA Civ 6 (06 April 1977).  A cricket club was sued in negligence and nuisance caused by cricket balls landing on a neighbour’s property.  Whilst ordering damages, the court refused to grant an injunction to cease the action or further action as the game of cricket itself was considered to be in the public interest.

Lord Denning began with the following:

“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”

http://www.bailii.org/ew/cases/EWCA/Civ/1977/6.html

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Luxton v Vines [1952] HCA 19 | 4 April 1952

ON THIS DAY in 1952, the High Court of Australia delivered Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 (4 April 1952).

http://www.austlii.edu.au/au/cases/cth/HCA/1952/19.html

“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. per Lord Loreburn (1911) AC, at p 678″. (at p358)”

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Harvey & 1 Ors v PD [2004] NSWCA 97 | 30 March 2004

ON THIS DAY IN 2004, the NSW Court of Appeal delivered Harvey & 1 Ors v PD [2004] NSWCA 97. A doctor performing STD tests upon a couple has a duty before the tests are performed to obtain the couple’s consent to share the results.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2004/97.html

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