EXTRACTS-
UNREPORTED SOUTH AUSTRALIAN
MAGISTRATES COURT DECISIONSH v S
PART 5
THE FOUR COMMON FEATURES
In many of the negligence cases discussion is concentrated upon whether there is sufficient nexus, and how this is ascertained in the particular circumstances. Concentration is focused on the link itself, rather than on what is, or may be, linked.
Without individually detailing the circumstances in each and every one of the negligence cases, it appears to me that each and every one has four common features.
The common features are:
a) a plaintiff who is a person;
b) harm to the plaintiff;
c) a defendant who is a person; and
d) the defendant's conduct.These four common features appear to me to be the ultimate ends of all of the relevant nexes which, cumulatively, may give rise to a duty of care. Each must be proved; there must be evidence which proves its existence, and the evidence must be of sufficient weight. If any one of the four common features is absent, the defendant cannot be held liable to the plaintiff in negligence. One or more of the nexes (which are pre-conditions for the emergence of a duty of care) cannot be formed, because only one of the ends of the potential nexus is actually present.
Harm and loss
The plaintiff's harm must be of a kind which is, in law, capable of being treated as a loss. Not every injury suffered by a plaintiff constitutes a loss for which damages may be awarded. It is this loss which is reflected in the award of damages if there is a breach of the duty of care. Consequently, exemplary and punitive damages are not awarded, for such damages reflect factors other than the injury the plaintiff suffered.
What the law will recognise as harm capable of being a loss may change over time. In Jaensch v Coffey, Mr. Justice Brennan said:
"A century ago psychiatric illness, without more, was not a form of harm or damage for which damages for negligence could be recovered: Victorian Railways v Coultas (1888) 13 AppCas 222."
Mental injury, harm and loss:
In respect of "nervous shock", Mr. Justice Brennan said in Jaensch v Coffey (at page 560):
"Compensation is awarded for the disability from which the plaintiff suffers, not for its conformity with a label of dubious medical acceptability. The term 'nervous shock' is useful nevertheless as a term of art to indicate the aetiology of a psychiatric injury for which damages are recoverable in an action on the case when the other elements of the cause of action are present. Thus Walsh J. in Pusey's case [(1970) 125 CLR 383, at p. 394] referred to 'all forms of mental or psychological disorder which are capable of resulting from shock'."
At page 567 of Jaensch, Justice Brennan went on to describe 'nervous shock' as a compound phenomenon where the disability is precipitated by more than "mere knowledge of a distressing fact." In addition, there must also be perception of a distressing phenomenon, ie:
"...the sudden sensory perception- that is by seeing, hearing or touching- of a person, thing, or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff's mind and causes a recognisable psychiatric illness."
It is clear that the disability may be either a psychological or a psychiatric injury. As long as all other necessary elements are present, there is no distinction drawn which means one form of disability gives rise to compensation whereas the other does not. What matters is whether or not the disability is precipitated by "the perception of a phenomenon.", not "mere knowledge of a distressing fact."
Justice Brennan's remarks were made in the context of a psychiatric illness precipitated by the sight of injury to another person. There is no reason to distinguish between the perception of a phenomenon where the life of another is obviously endangered and a perception of a phenomenon that one's own life is unnecessarily endangered; indeed, there appear to be more reasons to include the latter injury within the ambit of disability or loss than there are reasons to include the former.
Conduct and Act/Omission
Similarly, the defendant's conduct must be capable, in law, of being regarded as an act or omission which can give rise to liability. One of the difficulties is that sometimes the same conduct may be described either as an act or as an omission.
Mr. Justice McHugh referred to this in Abalos v Australian Postal Commission, in the course of looking at the relationship between the defendant's act and the plaintiff's loss:
"The question on the foreseeability issue was not whether the omission to provide proper supervision gave rise to a foreseeable risk of injury. It was whether the conduct of the defendant in requiring the plaintiff to work in this system gave rise to a reasonably foreseeable risk of injury."
Examination of the defendant's conduct may show that there is no act or omission which can found a duty of care. This is often important when claims for negligent misrepresentation are being considered, as in San Sebastian v Minister. There was a common theme in the San Sebastian judgements in the High Court: that the conduct complained of was not conduct which the law recognised as an action or omission capable of giving rise to a duty of care.
Equally, the defendant's conduct may be such as to amount to an act within the nature and scope of a duty of care when, but for the extreme nature of the conduct, no duty would be owed, as in Hacksaw v Shaw, when the owner of land shot bullets into a car driven by a trespasser who had been attempting to steal petrol from a farm petrol tank.
The person and the plaintiff
In this case, the plaintiff is both a natural person and recognised as a person by the law. There are no issues such as those which arise, for example with respect to juveniles. Juveniles are natural persons who are not recognised by the law as people with the capacity to sue and be sued.
The person and the defendant
The law recognises not only natural persons but legal persons. In this case, the defendant is a legal person: it is an incorporated association. Legal people act through the natural people who are the servants or agents of the legal person, but the legal person has separate indentity.
Four nexes between the four common features.
From the cases, there appear to be four vital nexes pairing the features common to every negligence case. There may well be other nexes which are critical pre-requisites to the emergence of a duty of care. If so, these nexes do not raise any issues in this case, and there is no need to ascertain whether they exist or not. However, I have not been able to locate any case where a duty of care has been found to exist in the absence of one or more of the following nexes.
The first nexus is the nexus between the plaintiff and the defendant, adverted to by Lord Atkin early in his reasons in M'Alister (also known as Donoghue) v Stevenson. Who is my neighbour?
The plaintiff-defendant relationship may have special features which give rise to a duty of care which would not exist in the absence of the features "special" to the particular relationship. "Dependence", by one party on the other, may be a special feature of the relationship. In Burnie Ports Authority v General Jones, the majority judges, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said:
"Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non-delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person".
"Special dependance" arises when one person is providing a medical service for another. In these circumstances the nexus between plaintiff and defendant is often circumstantial, contractual and temporal, as it was in Allbrighton v Royal Alfred Hospital, Rogers v Whitaker, Tottenham v Battersby, and F. v. R.
In contrast, the relationship between Dr. Lowns and the infant Woods, considered in the NSW case of Lowns v Woods, was never a patient-treating doctor relationship. At the material times, Dr. Lowns did not see either the infant plaintiff or his father (who suffered a nervous shock injury). In Lowns the nexus between plaintiff and defendant was ultimately established, but this nexus was a very weak link only capable of supporting a duty of care by reason of the strength of other nexes.
In Lowns, and in this case, the plaintiff complained that the general practitioner of medicine did not come after the plaintiff requested and/or needed medical attention. The similarities end there.
The special features of the relationship between the plaintiff and the defendant in this case are separately dealt with in other parts of these reasons.
The second nexus is a link between act/omission and loss. This nexus is causal, but it has two aspects.
The first aspect is causation, the nexus between the defendant's conduct and the harm suffered by the plaintiff.
Causation underpins the causal nexus between the act/omission and the loss.
Causation has been discussed in a number of cases, including Bennett v Minister for Community Welfare (whether or not later acts unrelated to the defendant had broken the chain of causation):
"The causal connection between a defendant's negligence and the plaintiff's damage is negatived by the subsequent conduct of another person only when that conduct is "the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by defendant" Hart and Honore, Causation In The Law, 2nd ed. (1985), p 136."
Bennett v The Minister, McHugh J.In Nagle v Rottnest Island Authority and March v Stramare, whether or not the plaintiff's own conduct broke the chain of causation was the central issue. Where there is causation, the harm is the outcome of the defendant's conduct, and contributory negligence by the careless plaintiff will not necessarily destroy the nexus: in March v Stramare, the defendant left a truck standing in the middle of a road. Along the road came a drunken driver, who ran straight into the truck. The defendant was held responsible for 30% of the plaintiff's loss.
Care must be taken, because causation deals with the question of whether or not there is sufficient evidence to link the defendant's conduct with the harm the plaintiff suffered. In Wood and Wood v Stefaniak, Judge Worthington was satisfied that there was no evidentiary link between the defendant's conduct and the harm the plaintiff suffered. No link was proved between act and loss because there was no link between conduct and harm.
Causal nexus has a second aspect, and it is indirect: there must be nexus between the defendant's conduct, the plaintiff's loss and the nexus between the plaintiff and the defendant, ie the plaintiff-defendant relationship itself.
Mr. Justice Brennan described this aspect of causal nexus, in the context of negligent misrepresentation, when he said in San Sebastian v The Minister:
" A causal relationship between a representation (a term which I shall use to embrace any verbal statement made by one person to another) and economic loss does not exist because of the operation of the laws of nature. It exists because the representation induces the representee to do something which causes the loss or to refrain from doing something which would have avoided the loss. It is the operation of the representation on the representee's mind - the inducement - which links the representation with the conduct which more immediately causes the loss. A representation induces a representee to act or to refrain from acting in a particular manner...he acts or refrains from acting in that manner in reliance on the truth of the representation."
In Albrighton v Royal Alfred Hospital, the facts were horrific.
Slowly, and over a period of several days, a mobile teenager was turned into a paraplegic by not emergency surgery but by elective procedures carried out in a hospital which used medical specialists to provide patient care.
There was no dispute as to what conduct caused the paraplegia; the central issue was whether there was a sufficient link between the hospital-patient relationship and the defendant's acts/omissions and the plaintiff's loss. It was held that there was; the Royal Alfred Hospital was liable because the hospital-patient relationship was one where the hospital undertook to provide complete medical care, using not staff chosen by the patient but staff chosen by the hospital.
But for this aspect of the hospital-patient nexus, the hospital would not have been liable for the conduct of the doctors (which caused the injuries the plaintiff suffered) outside the scope of vicarious liability for employees and independent contractors.
In Nominal Defendant v Gardikiotos, the causal link between act, loss and the plaintiff- defendant relationship was not sufficient: the plaintiff was entitled to a substantial damages award for injuries suffered by reason of the defendant's careless conduct, but there was no nexus between the defendant's acts, the plaintiff-defendant relationship, and the plaintiff's expenditure on a funds manager to manage the damages awarded. Gardikiotos would have been decided differently if the plaintiff had suffered intellectual impairment as a result of the defendant's conduct.
The third nexus is that there must be a link between the plaintiff and the loss.
The cases concerning damages for provision of gratuitous services ("Beck and Farrelly damages") are cases concerned with the nexus between loss and the plaintiff. Damages for provision of gratuitous services are paid because there is a nexus between the plaintiff and the loss. In Van Gervan v Fenton, the following quotation from Nguyen v Ngyuen was cited with approval by Mason C.J., Toohey and McHugh JJ:
"The disability gave rise to the need for nursing and other care. The need was met by the services gratuitously provided. The value or cost of those services was, in the circumstances, an appropriate means of quantifying that aspect of the plaintiff's loss which was represented by the need. As the need represented the loss, the value of the services required to fulfil that need served as a means of assessing the loss."
In Kars v Kars, the court was asked to find that the relationship between plaintiff and defendant meant that there was no "need" arising from the plaintiff's injury. The provider of the gratuitous services was the tortfeasor. The High Court rejected the argument; the plaintiff had suffered this loss as a result of the defendant's conduct. Whether or not the defendant provided gratuitous assistance, the plaintiff had suffered, and would continue to suffer, this loss.
The fourth nexus is the nexus between defendant and the act or omission which has caused the loss.
This is in issue in the vicarious liability cases; when the plaintiff seeks to hold one person, the defendant, liable for the acts of another person.
In so far as there is judicial division of opinion, it is with respect to sufficiency of the nexus, not with respect to the need to establish the nexus:
"It has long been recognized that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor. In those categories of case, the nature of the relationship of proximity gives rise to a duty of care of a special and "more stringent" kind, namely a "duty to ensure that reasonable care is taken" (See Kondis v. State Transport Authority (1984) 154 CLR 672 at 686.). Put differently, the requirement of reasonable care in those categories of case extends to seeing that care is taken."
Burnie Port Authority v General Jones,
per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ."It is a question of fact whether damage has been caused by collateral negligence or by a failure to perform the duty of care resting on the employer. It may be a question of some difficulty. The case will fall into the latter category if the risk of damage arises from the way in which the work will necessarily be done or from the way in which the employer expects that it will be done (as in Black v. Christchurch Finance Co. or McInnes v. Wardle), for in each of those situations the incurring of the risk is authorized by the employer..."
Burnie Port Authority v General Jones,
Brennan J.Burnie Ports was a case concerned with the employer's liability for the acts of independent contractors engaged by way of contract for services.
An employer-employee contract is a contract of service, even when the employee has special skills or expertise the employer does not possess. The essence of the contract of service is that the employer has control over the conduct of the employee. Hence the employer has "a duty to ensure that reasonable care is taken" and "the incurring of the risk is authorised by the employer." The employer is vicariously responsible for the acts of the employee.
The nature and scope of the duty of care owed by the provider of a service is different to the nature and scope of the duty of care owed by a person employed to deliver the service. The provider of a service has control over the circumstances within which the service is delivered; a person delivering a service may only have control over the delivery of the service, but not the circumstances which surround delivery of the service.
In the Abalos circumstances, for example, it cannot be said that a supervisor acting with reasonable skill and care would have prevented the occasioning of the injury Mrs. Abalos suffered.
The supervisor was supervising the performance of tasks carried out by subordinate employees. The supervisor did not necessarily devise the system within which subordinates such as Mrs. Abalos were required to work. Before the supervisor could have breached any duty of care owed by the supervisor, it would have to be shown that the supervisor knew or ought to have known that Mrs. Abalos's work station was inherently dangerous.
Work stations are not usually designed by supervisors whose task is to oversee the performance of tasks.
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