Lecture 10

Flowchart Negligence (Occupiers Liability)

Issue 1: Did the Defendant owe the Plaintiff a duty of care?

Is the risk of harm obvious? The content of the duty is to take reasonable care for the
safety of an entrant on the premises
Law (s 15): If
a Law:
If yes, no duty to warn of Reasonable Foreseeability:
obvious risk unless: o A reasonable person in Ds position must
P requested advice foresee that there was a risk their conduct
on the risks could harm someone in Ps position
Statutory Control / Vulnerability:
requirements o D in a position of control and P in a position
Risk of death or of vulnerability such that P relied on D
injury from o That position required D to protect Ps
professional interests
services
Case Examples:
Case Examples:
Romeo v Hackshaw v Shaw
Conservation Bryant v Fawdon
Commission NT Consolidated Broken Hill Ltd v Edwards
Borland v Modbury Triangle Shopping Centre v Anzil
Makauskas

duty of care is owed, you then need to

address the remaining issues in negligence

Vicarious Liability

Issue: Is the employer vicariously liable for their employees

negligence?

Law:
There must be a relationship of employer and employee
At the time of the negligence, the employee was acting in the
course of their employment

Case Examples:

Century Insurance v Northern Ireland Road Transport Board

Deatons Pty Ltd v Flew

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 Evolution of Negligent Misstatement

Year Decision Duty of Care Test

1964 Hedley Byrne & Co 1. Provision of Advice

v Heller & Partners 2. Special Relationship = Expertise or special skill

1971 MLC v Evatt 1. Provision of Advice

2. Special Relationship = Assumption of Responsibility

and Reasonable Reliance

1981 Shaddock & 1. Provision of Information

Associates v 2. Special Relationship = Assumption of Responsibility

Parramatta City and Reasonable Reliance

Council
1986 San Sebastian Pty 1. Provision of Information without request

Ltd v Minister 2. Special Relationship = Assumption of Responsibility

and Reasonable Reliance

3. More difficult to establish reasonable reliance where

information is provided without request from the

Plaintiff.
2001 Tepko Pty Ltd v Court provided total support for Special Relationship test

Water Board in MLC v Evatt

Notes:

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 Flowchart Negligent Misstatement

Issue 1: Did the Defendant owe the Plaintiff a duty of care?

The content of the duty is to provide information and/or advice with reasonable care and
skill.

Law:
The advice or information was given in respect of a serious or business matter
The circumstances were such that D assumed responsibility for providing
accurate information / advice (i.e. D did or should have realised that P (the
recipient) intended to act on it) (Assumption of responsibility)
In the circumstances, it was reasonable for P to have relied on the information or
advice (reasonable reliance).

Reasonable Reliance factors

The context in which the advice or information was given

Presence or absence of special skill
Length of relationship between the parties
Request for or simply provision of information or advice
Alternative sources of information or advice
Was the P a direct recipient of the information/advice or a third
party?

Case Examples:
Mohr v Cleaver
Hedley Byrne & Co v Heller & Partners
MLC v Evatt
Shaddock & Associates v Parramatta City Council
San Sebastian Pty Ltd v Minister administering EPA Act
Tepko Pty Ltd v Water Board
If Yes to Issue 1

Then you go to the remaining issues in a negligence question

Note: Section 22 CLA (breach of duty professionals) will be

particularly relevant to cases of negligent misstatement

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 Hypotheticals (self-study)
Hypothetical No. 1 (Occupiers Liability)

After a big night out, Janine climbed a 1.8m high fence and trespassed on
commercial premises to enter an unlocked toilet block. Janine used the toilet in
darkness and attempted to flush it. She did not see the modern push button cistern
but instead tried to flush a disused concrete cistern (which had no chain anyway)
resting on timber beams overhead. The disused cistern fell on her causing serious
injuries. She sued the owners of the property in negligence.

Hypothetical No. 2 (Occupiers Liability)

Jack was injured when attacked by three criminals in the car park of a shopping
centre where he was employed in the video store. There had been a history of
criminal conduct on the shopping centre grounds before Jack was attacked. The
injury occurred about 10.30 pm at which time the lights in the car park had been
switched off. He sued the owner of the shopping centre in negligence for failing to
provide lighting in the car park when workers and customers were still in its shopping
centre. The assumption was made that, had the lights been left on, the attack would
have been prevented.

Hypothetical No. 3 (Negligent Misstatement)

A company approached an accounting firm seeking advice on how to invest $1

million. The accountants introduced the company to a property developer whom they
knew had serious liquidity problems and had difficulty borrowing money but the
company was told none of this. The accountants instructed solicitors not to finalise
the loan documentation without first obtaining mortgage insurance as an added
security but the solicitors merely obtained an undertaking from the property
developer (i.e. the borrower) that the premium for mortgage security would be paid.
Neither the company nor the accountants were told that mortgage insurance had not
been obtained. The loan was not repaid, the property developer went broke and the
company lost their $1 million. Who should the company sue and will they be
successful under the tort of negligence?

Hypothetical No. 4 (Negligent Misstatement)

Felix, an accountant, has a longstanding client Stan. At the request of Stan, Felix
provides advice about adopting a tax minimisation scheme. Felix instructs Stan to
prepare the tax minimisation scheme. Tax returns are lodged and no tax is assessed.
Four years later the scheme is considered a sham by the ATO and amended
assessments are issued. Stan sues Felix under the tort of negligence for the amount
representing the tax owed to the ATO under the amended assessment.