Torts are an area of civil law that requires people to act responsibly towards others. Sometimes actions by others lead to civil suits.

TORT LAW

Imagine ordering a dessert and discovering that it contained human faeces. This is what happened to a couple in Sydney in 2009. Serving any food that may result in food poisoning (such as the insect in the bowl of soup shown below) should definitely not be on the menu!

When we buy food and drink we assume that it is edible. But this is not always the case. The law of torts deals with a range of conduct that causes injury to a person by breaching a legally recognised right and gives that person a remedy, such as payment of compensation.

However, the defendant may be able to avoid or lessen liability by the use of a legally recognised defence.

WHY IT IS IMPORTANT

You may be surprised to know that not all rights are recognised by tort law. For example, the right to privacy has not as yet been established as a separate tort in Australia.

In ABC v. Lenah Game Meats Pty Ltd [2001] HCA 63, the High Court was asked to consider whether a media organisation (the ABC) should be prevented from broadcasting film footage of a brushtail possum processing facility that was taken unlawfully by animal rights activists.

Although the court found that in this case there was no breach of privacy, the court did not rule out the possible development of the tort of privacy in the future.

DO WE NEED A TORT OF PRIVACY?

Negligence is the most common and important type of tort law heard by our courts. The law of negligence is concerned with whether or not a person's conduct has been so careless or faulty that he or she should be liable to injured parties for acts or omissions (failure to act).

Is a school teacher who allows her 10-year-old student to have lighted candles in a tent acting as a reasonable person? Clearly, such conduct or failure to act is careless to the point of being negligent and a person injured as a consequence may be entitled to initiate court action to recover compensation. To succeed in court action the plaintiff must prove, on the balance of probabilities, each of the following three elements

NEGLIGENCE

The defendant owed a duty of care

The defendant breached the duty of care

The plaintiff suffered loss as a consequence.

THE THREE ELEMENTS OF NEGLIGENCE

Duty of care: Duty of care is a responsibility to ensure the safety of those who may be affected by acts or omissions

Negligence: Negligence is a tort. Negligence occurs when a person breaches a duty to take reasonable care to avoid a foreseeable risk, resulting in a person being injured or suffering a loss

DEFINITIONS

When does one person owe another person a duty of care? In August 1928, May Donoghue and a friend went to a café

where the friend purchased a bottle of ginger beer for Donoghue to drink. The drink was in an opaque glass bottle, so it was impossible to see the contents of the bottle from the outside. Some of the ginger beer was poured over ice-cream and Donoghue consumed it. When the rest of the drink was poured, the decomposed remains of a dead snail sl ipped out. As a result Ms Donoghue suffered from severe gastroenteritis and shock.

Ms Donoghue wanted to sue Stevenson, the manufacturer of the soft drink but, at the time of the appeal court hearing (1932), an injured party could only sue if party to a contract. If Donoghue had been the person who actually purchased the drink, she could have sued in contract law. But, as her friend purchased the drink, Donoghue could not rely on contract law to recover damages.

DUTY OF CARE - THE SNAIL IN THE BOTTLE CASE — DONOGHUE V.

STEVENSON

Despite these legal difficulties, Donoghue took the radical step of suing Stevenson. The question for the court was whether or not there were any legal grounds upon which Stevenson could be held responsible for the injuries to Donoghue. The case went on appeal to the highest court in England, the House of Lords. In a 3–2 decision the court determined that a manufacturer could be liable for damage caused to the end-users of its products, even though the injured person was not a party to a contract.

Schools owe a duty of care to their students and must take reasonable measures to prevent foreseeable risks of injury to students. This includes taking steps to address bullying behaviour once identified. In 2008, a 30-year-old man brought a case against the New South Wales Education Department, claiming he suffered six years of humiliation and isolation at Tamworth High School while nothing was done, despite repeated complaints. The psychological damage done affected the man's ability to work. He was awarded $470 000 in compensation. (Gregory v. State of New South Wales [2009] NSWC 559)

DID YOU KNOW

The legal reason for the court's decision in Donoghue v. Stevenson (the ratio decidendi) was that a person who manufactures products that cannot be inspected prior to use, owes a duty of care to consumers of the product. One of the judges in the case, Lord Atkin, made a famous statement that is now known as the neighbour principle. In essence, Atkin stated that: you must take reasonable care to avoid acts or omissions

that you can reasonably foresee would be likely to injure your neighbour

your neighbour is any person who is closely affected by what you do or fail to do.

Thus, according to the neighbour principle, a duty of care is owed when a reasonable person could foresee that damage may occur as a consequence of the defendant's actions.

In 1931, Dr Grant purchased two singlets and two pairs of woollen underpants that were manufactured by Australian Knitting Mills (AKM). Without first washing the garments, Grant wore one pair for a week. He developed itchy patches on both his shins which he treated with calamine lotion. The next week he wore the second singlet and underpants for a week. The skin irritation developed into acute dermatitis and he was bed-ridden for 17 weeks. In an action against AKM, he alleged the underwear contained a hidden defect, a chemical residue, which caused the dermatitis. The precedent established in Donoghue v. Stevenson was followed and the court found that AKM had a duty of care to the wearers of its garments.

A BAD ITCH — GRANT V. AUSTRALIAN KNITTING MILLS

(1936) AC 85

Once the plaintiff has established that the defendant owed a duty of care, the next step is to prove that the duty was breached. This requires the plaintiff to prove: that the risk of injury was foreseeable that the defendant failed to exercise a reasonable standard of care

in the circumstances.Deciding whether the risk of injury was foreseeable and how

much care should have been taken in the circumstances is not always straight forward. Consider a situation where a female passenger in a car got out of the rear right door, but some of her clothing became caught in the door. When the driver heard the door close he slowly drove off. The passenger was dragged for some distance before the defendant heard her calls and stopped. Would a reasonable driver foresee the possibility that this injury would occur? What do you think?

BREACH OF THE DUTY OF CARE

In measuring the standard of care owed in the particular circumstances, courts consider a number of factors including:

the likelihood of injury. Was the risk of injury to the plaintiff reasonably foreseeable? If risk of injury is so remote that a reasonable person would ignore it, then the defendant may be justified in disregarding it.

the seriousness of injury. If the potential risk is great, the defendant should take greater precautions.

the effort and cost involved to address the risk . A defendant may be justified in not taking steps to address a risk if it is not economically justifiable.

Maree Whitaker had been almost blind in her right eye for 40 years when she agreed to have eye surgery. Her ophthalmic surgeon, Christopher Rogers, advised that the operation would improve the sight in her right eye and its appearance. Although the surgeon performed the operation with the required skill and care, she lost the sight in her good (left) eye as a result of a condition called sympathetic ophthalmia and there was no improvement in her right eye. Consequently she was left almost blind.

The court was asked to consider whether the doctor was negligent in failing to warn her that there was a one in 14 000 risk of developing sympathetic ophthalmia.

The High Court held that by failing to advise Whitaker of the risk, Rogers had breached the standard of care required in the circumstances.

STANDARD OF CARE FOR DOCTORS - ROGERS V. WHITAKER [1992]

Barry Watson was aged 12 years and two months when he threw a home-made dart that ricocheted and pierced the right eye of Susan McHale. The High Court in McHale v. Watson (1966) 115 CLR 199 decided that the standard of care required by Watson was that of a 12-year-old. While an adult might have appreciated the risk of throwing the dart the boy should be judged by a lower standard.

DID YOU KNOW

Even if the duty of care owed was breached, unless the plaintiff actually suffered injury, he or she will not succeed in a negligence claim. The plaintiff must show injury or loss and that it was directly caused by the defendant's failure to exercise adequate care.

It is not always easy to show the exact cause of an injury, as there is often more than one cause.

Consider the hypothetical case of a girl who was injured in a car accident as a result of a driver's negligence. While in hospital, a friend gave her some heroin to

199help ease her pain. Consequently, she became a heroin

addict. Ask yourself: did the negligent car driver directly cause her drug addiction?

LOSS SUFFERED

In more difficult cases where causation is not clear, courts ask whether the plaintiff would have been injured ‘but for’ the defendant's conduct. In March v. Stramare (E & MH) Pty Ltd (1991) 171 CLR 506, the defendant parked his truck in the middle of a four-lane road in Adelaide, at night, to unload goods. The plaintiff, who was very drunk, was injured when he drove his vehicle into the truck. Even though the plaintiff was drunk, the High Court found that ‘but for’ the truck driver negligently parking in the middle of the road, the accident probably would not have happened.

A Melbourne girl was in Year 9 when her eye was injured in a schoolyard accident. The student, Tanjil Duan, was talking with friends in a barbeque area in the school grounds when a coin was accidently flicked into her left eye. As a result of the incident, her eye was permanently impaired and she requires treatment to avoid further loss of vision. After a six day trial in the County Court, the jury found that the State of Victoria (the school) was negligent in not providing teacher supervision of the area. She was awarded $120 000 in damages plus a further $4000 interest.

STANDARD OF CARE FOR SCHOOLS

1.) Expla in what is meant by the ‘ne ighbour pr inc ip le ’ . 2.) Ident i fy who would be your ne ighbour in a negl igence case i f you were:

riding your bike on a footpath riding a skateboard in a public skate park a pilot flying a passenger plane a cook at a fast-food restaurant a tattooist.

3.) Ident i fy whether the fo l lowing statements are t rue or fa lse : The word ‘defendant’ refers to the person who is claiming his or her civil rights have been

breached. All a plaintiff has to do to win a case of negligence is to show that the defendant owed a duty to

take care. When the foreseeable in jury is l ike ly to be ser ious, the greater the precaut ions the

defendant must take. 4.) Would you consider what happened in the fo l lowing cases as be ing reasonably

foreseeable? Just i fy your response. Louise agreed to go whi te -water raft ing wi th f r iends. She was assured by the guide

that the act iv i ty would be safe. A flash flood occurred and the raft overturned and she drowned.

A gol f c lub h i red a motor ised go l f cart to an e lder ly patron. Whi le dr iv ing the cart , the patron col l ided with another go l fer and broke both h is legs. The injured go l fer i s su ing the gol f c lub.

A restaurant suffered a power outage for seven hours . Dur ing that t ime, the f reezer stopped work ing. The chef determined the meat which had been frozen was st i l l edible and cooked and served the meat that evening. Later , severa l customers suffered food poisoning and considered suing the restaurant .