EXTRACTS-
UNREPORTED SOUTH AUSTRALIAN
MAGISTRATES COURT DECISIONSH v S
PART 3
THE LIMITING RULES
Negligence
Negligence is a cause of action where the plaintiff must prove that the defendant owes the plaintiff a duty of care; that the defendant has breached the duty of care; and that the plaintiff has suffered a loss capable of being reflected in an award of damages. There is usually settled law concerning the nature and scope of the duty of care and as to harm which will be treated as loss for the purposes of damages awards. Most negligence cases involve only causation issues or breach of duty issues which revolve around the standard of care rather than the nature and scope of the duty.
This is an unusual case because the facts give rise to the need to consider the nature and scope of the duty of care owed by the defendant to the plaintiff. In this case it is easier to identify the legal aspects that do not arise for consideration and determination than it is to identify and enumerate the aspects that do.
Only one statute is relevant to the cause of action in this case, namely the Limitation of Actions Act, and that raises no issues in this case. There is no issue about aspects of temporal nexus between the defendant's action and the plaintiff's loss of the kind that arose in cases such as Voli v Inglewood Shire Council and Hawkins v Clayton, or, more recently, in Bryan v Maloney and Brisbane South Regional Health Authority v Taylor.
The Limiting Rules
The courts have devised number of "limiting rules" which are used for the purpose of establishing whether evidence is strong enough to establish the nexes which, cumulatively, give rise to a duty of care of a particular nature, and of particular scope. Tests are needed, for the reasons set out in many cases and recently restated by Mr. Justice Brennan in Bryan v Maloney:
"If liability were to be imposed for the doing of anything which caused pure economic loss that was foreseeable, the tort of negligence would destroy commercial competition, sterilize many contracts and, in the well-known dictum of Cardozo CJ, expose defendants to potential liability "in an indeterminate amount for an indeterminate time to an indeterminate class".
When speaking of one of the rules, Chief Justice Gibbs identified three contexts in which the limiting rules are used:
"Foreseeability is relevant to the three different questions that may arise in an action for negligence - whether there was a duty of care; if so, whether the defendant was negligent; and whether the defendant was liable for the kind of damage that resulted from the negligence - and this sometimes tends to lead to confusion."
Jaensch v Coffey.The particular limiting rule Chief Justice Gibbs referred to, "foreseeability", operates within the confines of another limiting rule, "proximity of relationship":
"As has been stressed in a number of recent cases in this Court ...a relevant duty of care will arise under the common law of negligence only in a case where the requirement of a relationship of proximity between the plaintiff and the defendant is satisfied. In the more settled areas of the law of negligence involving direct physical injury or damage caused by negligent act, the reasonable foreseeability of such injury or damage is, of itself, commonly an adequate indication that the relationship between the parties possesses the requisite element of proximity."
Hawkins v Clayton, Deane J.Recently, this was reaffirmed, in Bryan v Maloney:
"The cases in this Court establish that a duty of care arises under the common law of negligence of this country only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant kind of damage. In more settled areas of the law of negligence concerned with ordinary physical injury to the person or property of a plaintiff caused by some act of the defendant, reasonable foreseeability of such injury will commonly suffice to establish that the facts fall into a category which has already been recognized as involving a relationship of proximity between the parties with respect to such an act and such damage and as "attracting a duty of care, the scope of which is settled"
Mason C.J., Deane and Gaudron J.J.These two tests, "foreseeability" and "proximity of relationship" are the two tests which are of primary importance. The tests bear names derived from Lord Atkin's rhetorical words in M'Alister (aka Donoghue) v Stevenson. These names are legal concoctions which lie outside the scope the normal dictionary of the English language. Both tests have been described as "touchstones" in some cases by some judges and roundly criticised for their inadequacies by other judges and in other cases. The two tests are inter-related, as Mr. Justice Deane pointed out in Jaensch v Coffey:
"The notions of reasonable foreseeability and of proximity of relationship which were enunciated in Lord Atkin's speech in Donoghue v. Stevenson are related. The fact that an act of one person can be reasonably foreseen as "likely to injure" another is an indication, and, as will be seen, sometimes an adequate indication, that the requirement of "proximity" is satisfied. At the same time, the overall proximity of the relationship between the person or property of the plaintiff and that of the defendant or between the allegedly negligent act and its effect may be relevant on the question whether injury to the plaintiff was reasonably foreseeable."
"Foreseeability" and "proximity of relationship" are general tests of sufficiency of nexes. In respect of particular nexes there may be other tests. Ultimately, though, as Mr. Justice Deane pointed out in March v Stramare in respect of the tests used with respect to causation:
"Whatever label is given to such a rule - "common sense principles", "foreseeability", "novus actus interveniens", "effective cause", "real and efficient cause", "direct cause", "proximate cause" and so on - the reality is that such a limiting rule is the product of a policy choice that legal liability is not to attach to an act or omission which is outside the scope of that rule even though the act or omission was a necessary precondition of the occurrence of damage to the plaintiff.."
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