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10 Cards in this Set
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D v S "Snails" - defendant consumers part of a bottle of ginger beer, containing decomposed remains of a snail. Dark opaque bottle, purchased by friend and given to her. Does a duty of care exist? Introduces the "You must love thy neighbour principle" Who is my neighbour? "Persons so directly affected by my act that i ought to reasonably have them in contemplation as being affected by my acts or omissions" Aitken J said the following facts must be present for a duty of care to exist: -Manufacturer of products -Hidden defect -No reasonable possibility of intermediate examination -Knowledge of injury to life or property Ratio Dicidendi: "A manufacturer of products, which he sells in a form as to show that he intents them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of care in the preparation or putting up of the product will result in injury to the consumers life or property owes a duty of care to the consumer to take that reasonable care" |
Grant v Australian Knitting Mills Facts: Grant buys new undies from Australian Knitting Mills on 5th July. Wears the undies until the 12th July - one week. When he finally changes his undies he gets an itch/rash. Eventually he ends up with dermatitis. Sued for the damages Legal Issues: Was it an external or internal illness? Was the manufacturer negligent? Res Ispa Loquitor - negligence can be inferred from the defect Did the manufacturer owe a duty of care to the consumer? Defect was hidden, could not see the extra chemicals on the undies (even though it was outside) Differences to D v S: Undies werent packaged - possibility of tampering - court said this didnt take away from the duty of care owed. Importance: Manufacturer did owe a duty of care. Res Ispa Loquitor - negligence can be inferred from the defect If you buy something and you know there might be something wrong with it, cannot sue for negligence |
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Andrew v Hopkinson Facts: Plaintiff brought 2nd hand car from dealer. Dealer said "its a good car. I would stake my life on it". Car was sold to finance company and then sold to the consumer. The drag link joint was poor and plaintiff had an accident. Plaintiff sued 2nd hand car dealer. Legal Issues: Did the dealer owe a duty of care to the plaintiff? -Same principle applies in D v S, yes duty of care owed (even though they werent a manufacturer, the 'love thy neighbour' principle applies. Intermediate examination? Yes there was the opportunity but should be able to rely on expertise - not reasonable to expect plaintiff to check for hidden defects Importance: Extended the ruling of 'manufacturer' to people who have expertise Issue: Manufacturers (include suppliers, dealers, people with expertise) |
Brown v Cotteril Facts: Brown was 9 year old girl, goes to visit graveyard. Tomb stone fell on her and hurt her. Her father then sued on her behalf for damages (Cotteril argues that brown was not a consumer) Legal Issues: Even though brown was not a consumer, court felt cotteril ought to foresee that a passer in the graveyard could be harmed Anyone 'closely and directly affected' Importance: Extends the ruling for consumers to people in public places People who are closely and directly affected Issue Ultimate consumer |
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Stennet v Hancock and Peters Facts: Owner of a lorry noticed that one of the wheels wasnt working properly. Took it to a repairer to get wheel put back on. Repairer fixed it and said it was fine. While driving the wheel fell off again and hit a pedestrian (Mrs Stennet) She sued the lorry repairer and owner. Legal Issues: Was the owner at all liable? No negligence on his behalf as he had taken it to repairer and trusted him to fix it Did the repairer owe a duty? Clear that the lady was someone who the repairer ought to have foreseen could be harmed. Pedestrians and other road users are all people that could be harmed if repairs werent done correctly Importance: Court widened the rule by extending the category of foreseeable plaintiffs to anyone that should be foreseen that the negligence could harm. Issue: Foreseeable plaintiff |
Marx v Attorney General Facts: Mr Marx was employed in a government department. Heavy object fell on his head during his job due to negligence of another employee. After the head injury he changed and became aggressive towards his wife. She suffered a lot of violence from him. She tried to claim for negligence on the government departments behalf as it had affected her Legal Issues Was Mrs Marx a foreseeable plaintiff? Court said Mrs Marx was an unforeseeable plaintiff - she was too far removed from the act. The work place could not foresee this harm - she was a third party. If it had been Mr Marx he would be foreseeable because he was initially affected. Importance: Can only foresee damage to people directly affected from the negligence. Can not be a third party (like Mrs Marx) as she was too far removed from the situation. Issue: Foreseeable Plaintiff |
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Palsgraff v Long Island Railway Facts: Employees of a train station helping a passenger onto a train. The passenger dropped a package, which had fireworks in it. Fireworks subsequently explode. The sparks caused a set of scale to fall on palsgraff - standing at the other end of the station. Palsgraff sued the negligent packers. Legal Issues Was Palsgraff a foreseeable plaintiff? Two of the judges said "it was too far from where the negligence occurred to where the damage happened. Palsgraff was too far removed from the situation and was not foreseeable. There is no duty of care owed to Mrs Palsgraff. Importance: Limited the foreseeable plaintiff. Excluded people that are too far removed from the negligence Issue Foreseeable plaintiff |
Bourhill v Young Facts: Defendant was riding a motorcycle carelessly on the wrong side of the road. He had an accident and was killed. Pregnant plaintiff was on the other side of the road, didnt see the accident but she heard it. She was in such shock that she had a miscarriage and lost her baby. Tried to sue the defendants estate. Legal Issues Was she a foreseeable plaintiff? Bourhill was too far removed from the situation to foresee that the defendants negligence would affect her having a miscarriage. Not a foreseeable plaintiff Issue Unforeseeable plaintiff |
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Herschtal v Stewart Facts: Second hand car was sold to a finance company who then sold it to Herschtals company. The consumer signed a form that states the car had been "seen, tried and approved". A wheel came off while driving soon after the cars purchase, injuring the occupants. Legal Issues: Does it require the mere opportunity if inspection or do you have to anticipate it? -"love thy neighbour" principle from D v S applies, as a dangerous article was supplied knowing person could be affected. -In grant there was an opportunity to wash the undies Importance: Tucker J held that a "duty is owed when dangerous articles are supplied and you cannot reasonably anticipate there would be an examination likely to reveal the defect. Must be reasonably anticipated that an inspection would be likely to reveal the defect. This case makes it harder to argue in defence the reasonable possibility of intermediate examination. Issue Intermediate examination |
Jull v Wilson and Horton Facts: Forklift had been repaired, however the repairers were busy and as they told Wilson and Horton only provided a "temporary fix". W and H used it for 5 more months and then it collapsed and injured Jull. Wilson and Horton were sued and they wanted the repairer to be responsible for damages too so they issued a third party notice to the repairers. Repairers defence was that repairs were temporary. Legal Issues Repairer argued that he issued the temporary warning which was enough to count as a warning - but court felt that it wasnt sufficient for a warning as people often 'make do' with temporary jobs so the time period that W and H used it for was reasonably foreseeable. Court declared them jointly liable. Also NB that duty of care is extended when things are dangerous Importance Judge tells (in obiter) what an adequate warning would be: 1. Disclose the true nature of the defect 2. Express warning of danger (about being temporary) 3. Suggestion of inspection 4. Place time limit on use Issue Limits to liability |
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Holmes v Ashford Facts: Manufacturer sold hair dye to hairdressers then applied it to the plaintiff. Plaintiff got severe dermatitis and got very ill. Sued both the hairdresser and the manufacturer. Manufacturer had written on the label "certain skins may be sensitive to this hair dye - test before use" Legal Issues: Was the warning from the manufacturer adequate for a hairdresser? Court said given to a hairdresser the warning was adequate only because hairdresser has expertise and knows how to test hair dye. However if that warning was given to the public it wouldnt be sufficient as they would need more specific warnings/instructions. Hairdresser was liable but not the manufacturer. Importance Shows the length of warning that is necessary to different people - people with expertise are expected to have better knowledge and should be able to interpret warnings better than the public. Issue Defence of a warning. |
Yachetti v Duff Facts: Distributor (Duff) of pork sold sausages to retailers who then sold them to Yachetti and her family. Mrs Yachetti didnt cook them properly and got very sick when she ate them. She wanted to sue the manufacturer as she argued that there should have been a warning on the sausages. Legal Issues Should there have been a warning on the sausages? Court took the view that it is common knowledge that raw meat will cause harm if not cooked properly. There are some products where manufacturers shouldnt have to warn people and can rely on common knowledge for the warning of the product Importance Recognises the 'common knowledge' defence (although not very common) |
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Voli v Inglewood Shire Council Facts: The council commissioned an architect to design a stage for them. Before its constructionm the plans were inspected and approved by the government department. A council employee also looked at and approved the plan. The builder constructed it. The stage collapsed due to inadequate supports designed by the architect and Voli was injured. He sued the IS council architect and others. Legal Issues Does the architect owe a duty of care to users of buildings designed by them? "love thy neighbour" principle any user is foreseeable and they have close and direct relationship What is the ambiguity of the duty? What should the architect be required to take care about? Design a safe building - even if they are told to do a cheap building, they still owe a duty. What if architect designed it for one person and it was used for another? If architect could predict it was for multi use they would be liable Importance Court said that the architects negligence and the builders negligence were two seperate acts. Experts can not 'pass the buck' as they all have expertise in an area so they all have a duty of care Also brings in the change of use defence Issue Passing the buck and change of use |
Clay v Aj Crump Facts: Owner of a building site wanted everything cleared except an old wall so he told the demolition contractors and architects to leave the wall there. Architect didnt check the wall, he relied on the contractors. When builders came they put a meal hut next to the wall. No one carried a thorough check of the wall. It collapsed onto the plaintiff because it was not stable. Legal Issues Who owes a duty of care? Everyone with expertise owes a duty of care. Owner not liable as he should be able to rely on the expertise of experts Importance Court held that all three parties (architect, demolition, and builder) all owed a duty of care and were liable as they all contributed to the damage Architect = 42%, Contractor = 38% and Builder 20% Issue Joint tortfeasors |
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Bowen v Paramount Facts: A trust was selling piece of land (swampy). Mr McKay brought it and hired paramount builders to build him a house. Trust said they would put in a sand pad to make it easier to build on, then PB started building. Building inspector came to inspect and said they needed something more solid to build on. They put in concrete instead of wood. Inspector still wasnt happy but didnt specifically say dont build. After it was finished, Mc Mckay found a crack in the house and decided to sell. Unbeknown to them, the foundations of the house were not okay. Bowens then brought the house. Door started to jam, house leaked etc. and it needed big renovations. Can Bowen sue Paramount builders for inadequate building? Legal Issues: 1.Duty issue -Richmond P; duty has been extended to contractors, architects, engineers etc. Duty is not solely to whom contract is with -Woodhouse j; Who can bear the loss better through insurance? - Who has the biggest insurance policy? -Cooke J; Meritorious claims should be allowed - floodgates argument is specious/false All judges agree that a contracting builder owes a duty of care to subsequent purchasers not to create hidden defects, which cause or threaten damage to the structure of the building. 2. Negligence Issue: -Richmond P; Builders were only doing what they were told from the contract - not negligent -Woodhouse J and Cooke J; Said a careful builder would have done more to ensure safety. The 'red flag' from the inspector should have been an indication to get extra assurance/checks - negligent 3. Limitations to Liability Opportunity for intermediate examination Builders arguments: Bowens could have seen cracks - reasonable possibility for Bowens to inspect -Richmond P; McKay wasnt fully aware/not likely to warn. New home owners cannot be expected to check -Woodhouse J; A builder is not liable to a purchaser with knowledge of the defect or who ought reasonably to obtain knowledge by inspection -Cooke J; Home owners have a right to rely on people with expertise to ensure the house is safe 4.Time Limit Limitation Act 1950: Civil liability ceases after the cause of action accrues - When is this?? -Richmond P; Actual structure damage that is more than minimal -Cooke J; Everytime there is new and distinct damage a fresh cause of action arises and can sue again But this meant that 6 years could keep rolling on forever (same defect but new damage) so they made the: Building act 2004 - Civil proceedings relating to building work may not be brought up against a person after 10 years or more from the date of the act or omission on which the proceedings are based. This prevents people suing about the same damage lots of times. Even if new and distinct damage occurs at 10 years you cannot sue. Settling with one purchaser? EG. If the builder had settled the damage with McKay does that limit liability to future purchasers? -Richmond P; Most fair judgement - person/company should still be liable but they can bring in the person they settled with as a joint tortfeasor -Woodhouse J; If you settle with one, it limits the liability to others, assuming defect is cured -Cooke J; New and distinct damage gives new cause of action. Even if you settle with one person. What damages are recoverable? Only things you can get money for: Richmond p and woodhouse j: Can recover economic loss from physical damage Cooke J; Obiter; can claim for pure economic loss even if no physical damage |
Invercargill City Council v Hamlin Facts: Cracks in building in 1972, in 1989 doors were stuck. It was clearly built on inadequate foundations. Rather than sue the builder the plaintiffs sued the council for the building inspectors negligence. If the inspector didnt approve the inadequate house then they wouldnt have a problem. Legal Issues: Do councils owe a duty of care? Yes councils were included as manufacturers and owed a duty of care. Importance Extended the legislation to include councils as people who owed a duty of care Issue Person who owed duty of care |
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Sunset terraces v North Shore City Council Facts: Involved an apartment building with more than one residential apartment. Council failed to identify structural problems that let moisture into the building. Tried to argue that Bowens doesnt apply to apartment blocks. Legal Issue Do councils owe a duty of care in their inspection of apartment blocks? Councils owe a duty of care in their inspection role to both original and subsequent purchasers of residential properties. Council can warn defects of a property by a LIM report. A failure to request a LIM report upon buying the property may be contributory negligence or the real cause of loss Importance Councils/peoples duty is extended to any subsequent purchasers of residential properties. Issue Who duty of care is owed to |
Body Corp v North Shore City Council Importance -Duty of care owed regardless of the nature of the premises eg even industrial properties -Duty of care of councils also applies to building certifiers -Extended to council, building certifiers -Subsequent owner can sue if defect is hidden -Failure to request a LIM equals contributory negligence |
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