28/12/2016, 11:31:AM
28/12/2016, 11:31:AM
What is the duty of a company or person to protect from foreseeable risk?
Bringing a claim against another party for breach of duty of care, such as negligence, comes under the principle of tort. The word tort refers to a wrong or injury that has been caused. The tort can be an act or omission by a party which infringes the legal rights of another party. An action in tort is brought on the basis of a civil wrong. The civil wrong arises as a result of a breach of duty imposed by law. The fact that a tort is a civil wrong distinguishes it from that of a crime.
Reasonable foreseeability is central to the existence of the duty of care required by a company or person. It is based on an objective or a reasonable person’s standard. In general, the duty of care situation would arise from the following combination of factors: (1) a reasonable foreseeability of real risk of injury to a person either as an identifiable individual or a member of a class of persons; (2) the existence of proximity between the parties with respect to the act or omission; (3) absence of any rule that precludes such duty.
As example, in Wyong Shire Council v Shirt (1980) the court held 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. In this case the council was negligent for placing deep water signs in a shallow area, which resulted in an injury to a water-skier.
Whether a party has breached their duty of care to another can be summarised into two points: (1) was the risk of damage or injury to the party hurt reasonably foreseeable; (2) If the risk was reasonably foreseeable, was the response of the party that breached their duty of care to the risk reasonable in the circumstance.
In Donoghue v Stevenson [1932], Donoghue was in a cafe drinking ginger beer poured from an opaque bottle. On the last pouring of ginger beer into Donoghue’s glass a decomposed snail went into the glass. Donoghue suffered nervous shock and severe gastroenteritis as a consequence. The question for the court was did the manufacture owe a duty of care to Donoghue to not have the snail in the bottle? The court held the manufacture did owe a duty of care to Donoghue, on the basis of the ‘neighbour principle’. As Donoghue was affected by the manufacture’s contents in the bottle, as they were the party that produced it and not the cafe, this created a direct connection between Donoghue and the manufacture. The manufacture therefore owed a duty of care to Donoghue to avoid acts or omissions, which were reasonably foreseeable that would result in injury.
In Bolton v Stone [1951] a cricket match was in play on an oval that was opposite houses. The batsman hit a six, and the ball left the grounds and hit Miss Stone standing outside her house. Miss Stone brought a claim against the cricket club for negligence and her injuries. The court held even though the accident was foreseeable the probabilities of injury were slight. The court said that the standard of care to apply was that of a ordinary careful man, which that person does not take precautions for every foreseeable risk.
In Hughes v Lord Advocate [1963] a manhole lid in the street was removed by post office employees to carry out work on telephone cables. While the post office workers were on a tea break, an eight-year old boy playing in the area entered the workman's tent surrounding the manhole that was open. The boy tripped inside the tent and dropped a warning lamp down the manhole, which resulted in an explosion which caused severe burns to the boy. The court held that the post office employees had breached their duty of care to secure the manhole when they were on a break. This is because it was reasonably foreseeable that an eight-year old boy playing in the street, would out of curiosity want to see what is behind the tent when it was not being supervised or properly closed off to the public.
In Gala v Preston (1991) both Gala and Preston where drinking at a local hotel, and had both consumed a significant amount of alcohol. After leaving the hotel they stole a car and took turns in driving. An accident occurred while Gala was driving and Preston was injured. Preston then sued Gala for negligence for his injuries. The court held that both Gala and Preston were over the legal limit for the consumption of alcohol when they drove the vehicle at the time of the accident, and the fact that they were in a serious joint criminal activity, Gala did not owe a duty of care to Preston.
Our current society imposes on every company and person a duty of care to avoid acts or omissions that are reasonably foreseeable and may cause damage to others. The concept of foreseeability is not based on the company or person as to what they consider is reasonably foreseeable, but on a reasonable person on the basis of present society standards in the position of the party that committed the wrong.
Raising a civil claim against another party requires careful assessment of the facts to ensure the evidence of the claim is supported correctly. To avoid a claim, risk mitigate in advance, call me, to get that legal advice to protect your legal rights and interests.
The comments in the aforementioned do not constitute legal advice and are general in nature, and if legal advice is required please contact: John Melis at Legal AU Pty Ltd (03) 9999 7799 www.legalau.com
Legal AU Pty Ltd Lawyers are “Liability limited by a Scheme approved under Professional Standards Legislation.”
