Business Law students at Monash University College in Guangzhou today held symposium-style discussions on judicial policy currents and apparent meanings in the Australian common law of negligence. Their deliberations had the goal of trying to correct any mis-perceptions in the way the common law had been stated to the public. This is the record of the outcomes of their policy deliberations.
The First Element of Negligence - Duty of Care
Business Law students Yuki Jiang, Amber Tsai and Peppin Lee were asked how usable was Lord Atkin’s neighbour test in Donghue v Stevenson [1932] AC 562.
Their response was as follows. “The neighbour test gave a limitation to the range of persons who must be considered when contemplating acts or omissions. The most famous section was the explanation of the neighbour principle. A man has a Duty of Care to conduct himself in such a way as to avoid harm to others, where a reasonable man would have seen that such harm would occur. The neighbour test, or proximity test, is used to identify the nature of the relationship between defendant and plaintiff. According to Lord Atkin, his reasonable foreseeability of harm test determined whether a reasonable person thinks the damage is foreseeable. This does make sense, and appears to be suitable for any situation. It can be applied to see what people ought to do in their roles as a neighbour.”
The Second Element of Negligence - Breach of Duty of Care
Business Law students Cathy Wu, May Liu and Coco Nie were asked whether the weighing test of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, 48 appeared workable?
Their response was as follows. “The weighing test was used to determine the breach of duty of care by balancing magnitude of risk, probability of harm and expense, difficulty and inconvenience to reducing or eliminating risk, along with other conflicting responsibilities of the defendant. Generally it works well, however, knowledge of probability of harm varies with people and circumstances. For example, if no one ever water-skied in the lake, because only small children would generally swim there, then the sign would most probably have been put there for the children. Really, it should be up to the plaintiff to test the waters before conducting any dangerous activities.”
The Third Element of Negligence - Foreseeability of Damages
Business Law students Tommy Liang, Frank Lai and Tyra Zhang were asked whether Overseas Tankship Ltd. v Miller Steamship Co Pty Ltd (1966) 2 All ER 709 gave enough information with which to decide foreseeability of damages?
Their response was as follows. “Yes, it does make sense, because the ship’s engineer had the knowledge and experience to expect that the furnace oil on the water could catch fire. He could also have foreseen that anything in the vicinity of the oil spill could catch fire. Therefore the situation was reasonably foreseeable.
Review
The symposium participants agreed that the only problem element in negligence was deciding whether or not the duty of care had been breached. They said that the weighing testing might well be inadequate, and it should include a kind of duty on the plaintiff.
Sources:
Personal interview: September 14, 2011, Yuki Jiang, Amber Tsai and Peppin Lee.
Personal interview: September 14, 2011, Cathy Wu, May Liu and Coco Nie.
Personal interview: September 14, 2011, Tommy Liang, Frank Lai and Tyra Zhang.
Donghue v Stevenson [1932] AC 562.
Wyong Shire Council v Shirt (1980) 146 CLR 40, 48.
Overseas Tankship Ltd. v Miller Steamship Co Pty Ltd (1966) 2 All ER 709.
Join the Conversation