CHAPTER LEARNING OBJECTIVES

Transcription

1 CHAPTER 3 LEARNING OBJECTIVES At the end of this chapter you should be able to: define a tort and distinguish a tort from a crime explain the elements that must be proved to make out the tort of negligence explain the amendments made to the common law of negligence by the civil liability statutes list the circumstances where courts have held that a duty of care is owed by one person to another and when that duty will be regarded as having been breached explain how the law of negligence applies to motor vehicle accidents explain the obligations an occupier owes to persons entering their premises explain the defences of contributory negligence and voluntary assumption of risk describe the following torts against persons: assault, battery and false imprisonment describe the elements needed to prove torts against chattels in particular, trespass against goods, conversion of goods, and detinue define the tort of nuisance and distinguish a public nuisance from a private nuisance explain the rule in Rylands v. Fletcher define the tort of defamation and describe the defences that can be raised against such an allegation explain changes to the law of defamation in Australia by the enactment of uniform defamation legislation explain the doctrine of vicarious liability. T F A DR Barron_CH03.indd Sec1:64 E L P SAM 11/9/08 8:35:09 AM

2 THE LAW OF TORTS INTRODUCTION A tort is a civil wrong as opposed to a criminal wrong. The law of torts protects individuals against infringements of their rights. These infringements may be against another s property, reputation or their person. The law of torts provides rules of conduct that regulate how members of society interact, and provides remedies if the rules are breached and damage is suffered. The law of torts is very relevant to the business world. In this chapter we will examine the aim of the law of torts and those torts that are relevant to businesses. We will discuss the matters that must be proved to make out a tort. We will also consider the remedies available to a person who suffers as a result of the commission of a tort, and the defences that may be raised to a tort. KEY TERMINOLOGY THE FOLLOWING TERMS ARE USED THROUGHOUT THIS CHAPTER: assault battery chattel contributory negligence conversion of goods defamation detinue false imprisonment licence negligence private nuisance public nuisance tort tortfeasor trespass against goods trespass against land vicarious liability voluntary assumption of risk a tort that occurs when the act of one person causes another to believe they are going to be physically harmed by that person a tort that involves the intentional application of force to another person any property, other than land negligence that occurs when a plaintiff can be held to be partly to blame for a loss an act in relation to goods that constitutes an unjustified denial of a person s right to goods publication of a statement that tends to lower a person s estimation in the eyes of the public the wrongful retention of another person s goods a tort that occurs when a person is restrained so that they have no reasonable means of escape an interest in land that permits a person to do something on land that would otherwise be a trespass a failure to take reasonable care an unlawful interference with a person s use or enjoyment of land an act that interferes with the enjoyment of a right to which all members of the community are entitled a civil wrong a person who commits a tort the wrongful interference with a person s enjoyment of possession of goods a direct interference with a person s right to possession of land where one person is held responsible for the actions of another a complete defence to a claim of negligence, where a person has voluntarily assumed the risk of negligence

3 66 FUNDAMENTALS OF BUSINESS LAW 6e DEFINITION OF A TORT Law of torts allows individuals to sue one another Law of torts is commonlaw based A tort is a civil wrong, and must be distinguished from a crime. A crime is a wrong against society that results in an offender being punished. When a crime is detected, it is the responsibility of the police or prosecuting authority to prosecute an individual for the commission of the crime. The law of torts provides a mechanism whereby individuals can protect their rights and, if these rights are infringed, take action against the wrongdoer. The aim of the law of torts is different from the aim of the criminal law. The criminal law seeks to punish wrongdoers while the law of torts aims to compensate those who have suffered as a result of a tort. An individual can sue another for committing a tort. The action does not have to be commenced by the government. Another difference between the law of torts and the criminal law is that a crime requires there to be a mental element, whereas a tort may not. For most crimes, a person must have intended to commit the crime before they can be convicted. This is not necessary in the law of torts. For the majority of torts, all that is required is the commission of the act. Generally, the intention of the person committing the tort is not relevant. It is possible that one action may amount to both a tort and a crime. For example, an assault against a person is both a crime and a tort. A person may be charged with assault by the police and, if found guilty, will be punished by the courts. In addition, the wrongdoer may also be sued by the victim for the tort of assault. The remedy of damages could be claimed by the person assaulted as compensation for injury, pain and suffering. A person who commits a tort is called a tortfeasor. The law of torts is common-law based, so we must look to case law for the law in this area. We will not examine every tort, but will concentrate on the more common torts that are relevant to the business world. TABLE 3.1 Comparison of a tort and a crime CRIME Aims to punish Action commenced by government Mental element usually required Outcome is conviction or release of offender Perpetrator called an offender TORT Aims to compensate Action commenced by individuals Mental element may not be required Outcome is a remedy for plaintiff Perpetrator called a tortfeasor THE TORT OF NEGLIGENCE Negligence is one of the better-known torts. This term will be defined, and the elements that must be satisfied to prove negligence will be examined. The remedies available to the person suffering loss, and the defences to such an action, will be considered. Duty of care imposed in certain circumstances Elements of negligence DEFINITION OF NEGLIGENCE In certain situations the law imposes a duty on a person to act with care towards others. If this duty exists and there is a failure to act carefully and another suffers loss, then the tort of negligence is committed. Three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another there must be a breach of that duty of care damage must have been suffered as a result of the breach of duty. The parties to a civil action are the plaintiff and the defendant. The duty of care must be owed by the defendant to the plaintiff. It must be the defendant who breaches the duty and the plaintiff who suffers loss.

4 CHAPTER 3 THE LAW OF TORTS 67 A good definition of the tort of negligence is provided by Winfield and Jolowicz in W. V. H. Rogers, Winfield and Jolowicz on Tort (Sweet and Maxwell, London, 1994) as follows: Negligence as a tort is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. duty of care owed Definition of negligence FIGURE 3.1 Elements of the tort of negligence PART ONE defendant plaintiff damage suffered breach of duty of care The law of negligence has its origins in the common law. We will consider the development of the tort at common law. More recently there have been major changes to the law of negligence by the passage of legislation. In recent years in Australia damage awards for personal injuries have increased to unsustainable levels and the cost of liability insurance has risen accordingly. This had been termed the tort law crisis. Civil liability legislation has been enacted in each jurisdiction to deal with this crisis. This is discussed in more detail later in this chapter. (See p. 84 for the discussion and Table 3.2 for a list of the relevant statutes.) In this chapter the common law of negligence will be considered and then the relevant civil liability legislation will be discussed if that alters the common law in any way. HISTORICAL ORIGINS OF THE LAW OF NEGLIGENCE The development of the modern law of negligence has taken place over time. A decision of the House of Lords in the following case was very important in the development of this area of law, as it was the first real attempt by the courts to define the concept of a duty of care. Donoghue v. Stevenson [1932] AC 562 FACTS: In this case a ginger beer manufacturer sold a bottle of ginger beer in an opaque bottle to a retailer. The retailer then resold it to a customer who purchased the bottle for a friend to drink. Unfortunately for the friend, the bottle contained not only ginger beer but also a badly decomposed snail! This unwelcome guest had found its way into the bottle at the factory. The woman who drank the contents became ill and sued the manufacturer for negligence. DECISION: The court held that the manufacturer owed her a duty of care to ensure that the bottle did not contain matters capable of causing harm, even though she had not bought the drink herself and had no contractual relationship with the manufacturer. The defendant had acted negligently and was obliged to compensate the plaintiff. Importance of Donoghue v. Stevenson The Donoghue v. Stevenson case is very important for the reason that the court discussed the concept of when a duty of care arises. A principle was developed in the case that has become known as the neighbour principle. This indicates to whom this duty of care applies. This principle was developed by Lord Atkin and is explained in the following quotation, taken from the decision of the case Donoghue v. Stevenson at 580: in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of culpa, is no doubt based upon a general public

5 68 FUNDAMENTALS OF BUSINESS LAW 6e sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when directing my mind to the acts or omissions which are called in question. Establishing a duty of care Test of reasonable foreseeability When does the neighbour principle apply? One way to determine when the neighbour principle applies is to list the types of situation in past cases where a duty of care has been held to exist. Some circumstances giving rise to the duty are expected while others are surprising. Before the law will say a duty of care exists, foreseeability must exist. Foreseeability For a duty of care to exist it must be shown that it was foreseeable that the action of the defendant could have caused harm to the plaintiff. The test is one of reasonable foreseeability: an objective test. The question to be asked is whether a reasonable person would foresee that damage may result from the defendant s action. You do not ask whether the defendant believed damage would ensue. S Hay or Bourhill v. Young (1943) AC 92 FACTS: A motorcyclist driving in a negligent manner collided with a vehicle and was killed. Just prior to this, the plaintiff was standing some 10 metres away from the point of impact on the far side of a stationary tramway car. She was unloading a basket from the tramway platform. She suffered nervous shock as a result of hearing the noise of the collision and seeing its aftermath. DECISION: The court held that it was not reasonably foreseeable to the cyclist that the plaintiff would be injured as a result of his careless riding. She was outside the area of foreseeable danger. Wyong Shire Council v. Shirt (1980) 146 CLR 40 FACTS: The plaintiff council had dredged a channel in the south lake of Tuggerah Lakes. The lake was normally very shallow. The council erected signs that stated Deep Water. An inexperienced water-skier fell near one of the signs and suffered serious injury. The water was only 3.5 to 4 feet (approx. 1.0 to 1.2 m) deep in that area. The skier sued the council for damages, alleging negligence. DECISION: The sign was ambiguous and a reasonable person might conclude that the area beyond the sign was also deep water. A skier might be induced to ski in the area believing the water to be deep. It was therefore reasonably foreseeable that damage or injury may occur. The plaintiff s claim was successful. Ratcliffe v. Jackson [1994] Aust Torts Repts FACTS: The plaintiff alighted by the rear driver s side door of a car driven by the defendant. As she closed the door, part of her clothing caught in the door. The defendant drove off slowly about two seconds after hearing the door close. He had checked his mirrors for other traffic before moving off but did not check whether the plaintiff was clear of the vehicle. The plaintiff ran alongside the car for about 20 metres before she fell to the ground and was dragged a further distance before the defendant stopped the car after hearing her screams. The plaintiff sued for damages for the injuries sustained. DECISION: The plaintiff did not succeed in her claim. The court said the risk of injury was not proved to be reasonably foreseeable. The chance of the plaintiff remaining attached to the car was very remote and there were no special circumstances that should have alerted the defendant to this possibility.

6 CHAPTER 3 THE LAW OF TORTS 69 It is not necessary to foresee the actual damage that will occur. It is enough if it can be shown that some type of damage could arise as a result of the defendant s conduct. This point is well illustrated in the following case example. Chapman v. Hearse and Another (1961) 106 CLR 112 FACTS: Chapman was injured when a motor vehicle he was driving had an accident and Dr Cherry stopped to assist him. While he was attending to Chapman s injuries on the road he was struck by a car driven by Hearse and killed. Dr Cherry s estate sued Hearse for damages in negligence. Hearse claimed that Chapman had also been negligent and was partially responsible for Dr Cherry s death. For Hearse s argument to succeed he needed to show that Chapman owed a duty of care in his driving to Dr Cherry. DECISION: The court said that Chapman owed a duty of care to Dr Cherry. Even if he couldn t be expected to foresee the precise chain of events that led to Dr Cherry s death, he could reasonably be expected to foresee that someone might come to his aid if he had an accident, and that if that person was assisting him on the roadway, that the person themselves might be injured or killed. The court held Hearse was liable in negligence to Dr Cherry s estate, but that Chapman was also liable, and ordered Chapman to contribute 25 per cent of the damages to Hearse. Chapman brought an action against Hearse, contending that he was not negligent and should not contribute damages to Hearse. The court held that both Chapman and Hearse were liable in negligence, and the appeal was dismissed. PART ONE Good Samaritans It is appropriate at this point to mention good Samaritans, those who go to the aid of another. Often this occurs after a motor vehicle accident has occurred. The civil liability legislation encourages and protects good Samaritans like Dr Cherry by providing that they will not incur personal civil liability when they are assisting an injured person in an emergency as long as they are acting in good faith and in some jurisdictions exercising reasonable skill or care. A good Samaritan is a person who acts without expecting payment or reward who comes to the aid of a person and may include a medical practitioner. In relation to volunteers the legislation exempts them from liability if they are acting in good faith while undertaking community work. In concluding the discussion of foreseeability, it should be said that where damage is reasonably foreseeable it is thereby preventable and consequently avoidable. Proximity no longer relevant in determining if duty of care exists Historically, before a duty of care was held to exist the courts would look for the presence of another factor in addition to forseeability. That factor was proximity which required some relationship between the parties and proximity that required care to be taken. Proximity is no longer regarded as an essential factor in establishing a duty of care at common law. Preventable and avoidable damage Duty of care under the civil liability acts The legislation has changed the test that is applied to determine if there is a duty of care when there is a risk of personal injury. A three-step test is now applied to determine whether a person will be negligent for not taking precautions against risk. Section 32 of the Civil Liability Act 1936 (SA), formerly referred to as the Wrongs Act, is illustrative. It provides as follows: 32 Precautions against risk (1) A person is not negligent in failing to take precautions against a risk of harm unless (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and

7 70 FUNDAMENTALS OF BUSINESS LAW 6e (c) in the circumstances, a reasonable person in the person s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. THE DUTY OF CARE, AND CASES OF PURE ECONOMIC LOSS Compensation for financial loss may be awarded In some cases the defendant s negligence will cause no physical damage or injury to the plaintiff or their property, but the plaintiff will suffer financial loss as a result of the defendant s actions. The courts have allowed the plaintiff to recover for economic loss in a number of situations; for example, where: the defendant has made a negligent misstatement the plaintiff s loss has flowed from damage to the property of a third party the plaintiff has suffered loss as a result of a defective product or structure the plaintiff has suffered loss as a result of professional negligence. Negligent misstatement The tort of negligence has been applied to the giving of advice. Negligent misstatement is a tort. This topic is discussed in some depth in Chapter 8. (See page 249 for a detailed discussion of the elements required to bring an action for negligent misstatement.) The following newspaper article from the United Kingdom deals with the liability of professionals (solicitors) for negligent advice. Earl s ex-wife sues divorce law firm LONDON ASSOCIATED PRESS The former wife of Earl Spencer, the late Princess Diana s brother, filed a 2 million ($A5 million) negligence suit today against a law firm that advised her before her divorce. The lawsuit by Countess Spencer said that she hired the attorneys to contain the distress of the divorce proceedings, which she wanted to be over as quickly and privately as possible. But because of their negligence, one of the most public divorce hearings ever recorded took place, with the world s press in general and the British press in particular covering every detail of the proceedings, the suit alleges. The former model Victoria Lockwood, who was married to Earl Spencer for eight years and bore him four children, is suing the London-based Family Law Consortium. Another firm took over in May and won her a 1.8 million settlement during the couple s divorce hearing in Cape Town. But she contends she missed out on a much bigger figure by reaching the agreement in South Africa rather than in London, where she claims the courts would have awarded her a lump sum of about 3.4 million. The couple, already estranged, both moved to Cape Town in 1995 and set up separate homes within a few streets of each other. Lady Spencer s suit said the Family Law Consortium took so long to prepare some of the divorce-related paperwork that her husband reached the 12-month residency mark in South Africa, which entitled him to commence divorce proceedings there. Lady Spencer, 32, who has acknowledged suffering from eating disorders and drug and alcohol problems in the past, said if the proceedings had taken place in England, they would have been held in private, without access for the press. A spokeswoman for the Family Law Consortium said the firm had not yet seen the suit and would have no comment. During the proceedings in Cape Town, Lady Spencer alleged the Earl was a serial adulterer who had 12 mistresses. He maintained she was mentally unstable and unable to handle the large sum of money she was seeking in the divorce. SOURCE: The Age, 25 January 1998, News/ International News Section, p. 11 Copyright 2005 Associated Press. All rights reserved. Distributed by Valeo IP.

8 CHAPTER 3 THE LAW OF TORTS 71 NEWSPAPER DISCUSSION QUESTIONS 1. Who is the plaintiff in the action? 2. Who is the defendant? 3. Why did the defendant owe the plaintiff a duty of care? 4. Identify how the defendant is alleged to have been negligent. 5. What remedy is the plaintiff seeking? Loss to the plaintiff flowing from damage to person or property suffered by a third party In the following cases the plaintiffs were entitled to recover for economic loss despite the fact that no physical injury was suffered. PART ONE Caltex Oil (Aust.) Pty Ltd v. The Dredge Willemstad (1976) 136 CLR 529 FACTS: Caltex Oil suffered economic loss when a pipeline owned and operated by Australian Oil Refinery Pty Ltd was damaged as a result of the respondent s negligent navigation. The pipeline carried oil products from the refinery at Kurnell to the Caltex Oil terminal on the opposite shore. Due to the damage, the pipeline could not be used for some time, and Caltex incurred considerable expense in transporting oil by an alternative route. DECISION: Caltex Oil was entitled to recover the economic loss suffered. S Perre v. Apand Pty Ltd (1999) 198 CLR 180 FACTS: The defendant provided potato seed to a potato grower in the South Australian Riverland to grow an experimental crop for the purpose of making potato crisps. The seed was non-certified and came from a part of Victoria where it was possible that it may have been infected with a disease called bacterial wilt. The seed produced a crop but it was infected with bacterial wilt. As a result of quarantine laws, the neighbours (including the plaintiff) could not export their potatoes interstate because they had been grown within 20 km of an outbreak of bacterial wilt. They sued the defendant for economic loss flowing from their inability to export. DECISION: The court held the defendant had breached its duty of care to prevent economic loss to the potato grower s neighbours when it supplied the non-certified seed to the potato grower. The court said it was not necessary for the plaintiff to show physical harm before an action in negligence for economic loss could succeed. Loss as a result of a defective product or structure If a defective product has been supplied, the economic loss resulting could be the cost of repairing the product or the cost of replacing it. Junior Books Ltd v. Veitchi Co. Ltd [1983] 1 AC 520 FACTS: The respondents negligently laid floors in the appellant s factory. There was no physical injury suffered by the factory owner but the defects in the floor meant the owner would have high maintenance costs that would reduce profits. The maintenance costs were greater than the cost of replacing the floor. DECISION: The respondent was liable for the economic loss resulting from the negligent laying of the floor. The appellant was permitted to recover the cost of replacing the floor together with the consequential costs involved in its replacement for example, the profits lost while the business was closed in order to have the floor replaced. S Recovery of economic loss Bryan v. Maloney (1995) 182 CLR 609 FACTS: Mrs Maloney purchased a house, which had been built seven years earlier by Bryan. Six months after purchasing the house, cracks started appearing in the walls due to inappropriate footings. Mrs Maloney sued for the reduction in the value of her house, which was a purely economic loss. Mrs Maloney won her case and Bryan appealed. DECISION: The High Court of Australia found in Mrs Maloney s favour. The majority of the court held that there was a strong causal proximity between the parties, because Bryan s negligent work was the cause of the financial loss. The court said there was enough proximity between the parties to establish a duty of care. Bryan had assumed responsibility to build a house free of defects, and the purchaser had relied upon him to do this.

9 72 FUNDAMENTALS OF BUSINESS LAW 6e Woolcock Street Investments Pty Ltd v. CDG PTY Ltd (2004) 216 CLR 515 FACTS: The respondents were consulting engineers who had designed the foundations for a warehouse and offices in Townsville. The appellant purchased the building from the owner who had constructed the building. Approximately a year later there was evidence that the building was suffering structural distress. The new owner (the appellant) sued the constructing engineer alleging negligence. DECISION: The High Court of Australia held that the defendant engineers involved in the construction of a commercial building did not owe a duty to take reasonable care to avoid pure economic loss to a later owner. The loss being the cost of repairs and consequential losses. The court distinguished the case of Bryan v. Maloney on the basis that: There was no evidence of reliance, dependence or assumption of responsibility by the original owner on the defendant There was no evidence of the plaintiff being vulnerable to the economic consequences of any negligence of the defendant in its design of the building The plaintiff could have discovered defects in the foundations by having an expert inspect the building prior to purchase. Professional negligence and economic loss Professionals need to be very careful as they may find they are liable for economic loss suffered by their clients as a result of their negligent actions. Pullen v. Gutteridge, Haskins & Davey Pty Ltd [1992] Aust Torts Repts DECISION: An engineer was held liable to his client for economic loss suffered as a result of the engineer s negligent design of a swimming pool. Professionals may also be liable to third parties who use their advice. The following case examined the situation in which professional advisers owe a duty of care to third parties. Esanda Finance Corporation Ltd v. Peat Marwick Hungerfords [1997] Aust Torts Repts FACTS: Peat Marwick Hungerfords audited the accounts of X company. Later this company went into receivership. Esanda lent money to X on the basis of the audited accounts. It sued the auditors for negligence. DECISION: Based on the pleadings (they did not say the auditors knew or ought to know that Esanda would rely on the audited statements) no duty of care was owed by the auditors to Esanda. The court said the plaintiffs were able to protect themselves, as they were sophisticated investors. The court did however establish a test to use to determine when a duty of care is owed to a third party. It is not enough to show that a statement made by an adviser might be relied on by a third party. The court said three factors were required to be established: 1. The adviser knew or should have known that the information given to the client would be communicated to a third party. 2. The information or advice would be given for a purpose that would be very likely to lead a third party to enter a transaction of the kind that the third party did enter. 3. It would be very likely that the third party would enter that transaction in reliance on the advice and risk economic loss if the advice were wrong. SITUATIONS IN WHICH A DUTY OF CARE APPLIES The first element required to prove negligence is that a duty of care must be owed by one person to another (see Figure 3.2 opposite). This list is not to be regarded as exhaustive but simply as illustrative of the situations in which a duty of care exists. The courts are constantly adding to the list of situations in which a duty of care applies.

10 CHAPTER 3 THE LAW OF TORTS 73 A duty of care applies in the following situations: A duty of care applies to negligent misstatements. If a person is giving advice in a professional capacity or holding themselves out as an expert, they owe a duty of care to the person being advised. This topic is dealt with in some detail in Chapter 8 on contract law. See particularly the case of L. Shaddock & Associates Pty Ltd v. Parramatta City Council (No. 1) (1981) 150 CLR 225 (p. 249). A road user owes a duty of care to other road users. The duty is owed to the other persons property and to their persons. A school authority owes a duty of care to students to maintain the safety of the students under their care. See Horne v. Queensland (1995) Aust Torts Reports where a school was held liable for allowing students to make their own way to tennis courts for sporting activities by either cycling or walking. The plaintiff borrowed a bicycle and was injured when she fell under the wheels of a semitrailer. The occupier of premises owes a duty of care to persons entering the premises against dangers posed by their premises. A bailee of goods owes a duty of care to the bailor while goods are in the bailee s possession. Bailment is discussed in some detail in Chapter 10 (see pp ). Suppliers of goods and services owe a duty of care to the persons they are supplying. A local council owes a duty of care to persons to whom the council provides information regarding zoning. (Note that this may not be the full extent of their duty.) A cigarette company owes a duty of care to potential customers to warn of the dangers of smoking when advertising its product. A solicitor holding a will made on the instructions of a client owes a duty of care to the executor named in the will to inform them of the client s death. A dog owner owes a duty of care to others in respect of a dog that has a propensity to bite people. FIGURE 3.2 Situations in which a duty of care applies PART ONE The class of persons to whom a defendant owes a duty of care to avoid infliction of personal injury can extend beyond those persons who were alive at the time the negligent act of the defendant took place. In Hawkins v. Clayton (1988) 164 CLR 539 the High Court stated that a duty of care to avoid physical harm can be owed to a person who is not yet born. This case concerned the builder of a maternity hospital and the court said a duty of care was owed by the builder to infants who would be born and housed there in the future. Positive duty to prevent harm If there is an established category of duty, it is possible to show that a person has a positive duty to act to prevent harm occurring. An example would be where there is a continuing professional relationship between the parties. The relationship may be between solicitor and client, accountant and client or doctor and patient. In the following case example a doctor was held to have a positive duty to help someone who was not his own patient. DISCUSSION QUESTIONS 1. How far should the courts go in extending the situations in which a duty of care applies? 2. What are the implications for the courts of extending the situations in which a duty of care is owed by one person to another? Lown v. Woods [1992] Aust Torts Repts FACTS: While on holidays a boy suffered an epileptic fit. The holiday unit at which he was staying was near a general practitioner s surgery. The boy s sister went to the surgery to get help for her brother. The doctor had not started consulting for the day and no patients had arrived at his surgery. The doctor had at the surgery drugs and equipment that could have been used to treat the child. He refused to attend the holiday unit to treat the child and the boy suffered brain damage, which it was alleged was preventable, had the doctor assisted.