Negligence
| Author | Julian Bailey |
| Pages | 855-957 |
855
CHAPTER 10
NEGLIGENCE
What is negligence? 856
Elements of negligence 857
Element 1: A duty of care 858
(i) e duty of care concept 858
(ii) Type of foreseeable harm, injury or loss 860
(iii) e likelihood of the harm, loss or damage eventuating 873
(iv) Assumption of responsibility and vulnerability 874
(v) “Fair, just and reasonable” 881
(vi) Disclaimer 882
(vii) Insurance 883
(viii) Statutory imposition of duty of care/statutor y duties 884
Element 2: Breach of duty 884
(i) Generally 884
(ii) Professional negligence 888
(iii) Vicarious liability and non-delegable duties 895
Element 3: Causation of harm, loss or damage 896
(i) Introduction 896
(ii) Reliance and causation 897
(iii) Intervening acts and events 898
(iv) Australian civil liability legislation 899
Application to the construction and engineering industries 900
Contractor 900
(i) Harm or injury to person/damage to “other property” 900
(ii) Pure economic loss 902
Subcontractor 913
(i) Duty to main contractor 913
(ii) Duty to third parties 914
Contract administrator 917
Owner 918
(i) Duty to construction operatives 918
(ii) Purchaser or occupier 918
(iii) Government of Singapore 920
Architect 920
(i) Duty to client 920
(ii) Duty to third parties 923
Engineer 924
(i) Duty to client 924
(ii) Duty to third parties 925
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Supplier 927
(i) Physical harm, injury or damage to “other property” 927
(ii) Pure economic loss 929
Quantity surveyor 931
Property surveyor 932
(i) Generally 932
(ii) Scope of duty 933
(iii) Damages 934
Public authority 937
(i) Introduction 937
(ii) Physical harm or damage to “other property” 939
(iii) Pure economic loss 941
(iv) Liability for breach of statutory duty 946
(v) Liability for conduct of independent contractors 947
Expert 947
(i) Expert determination 947
(ii) Expert witness 948
Arbitrators and adjudicators 948
Trade association 949
Concurrent duties in contract and tort 949
Contributory negligence 952
(i) Generally 952
(ii) Defence to an action in contract? 953
(iii) Fault and causation 954
(iv) Reduction in damages 956
(v) Contractual defences and limitations 957
What is negligence?
10.01 Negligence refers to an obligation in tort, imposed by law, upon a person to con-
duct himself with reasonable care so as to ensure that another person or a class of persons
will not suer a particular type of injury, harm or loss. e obligation is founded on an
impersonal standard of how a reasonable person should act in particular circumstances,
where a particular type of injury, harm or loss is reasonably foreseeable.1 An obligation
to act with reasonable care may apply in respect of the action or inaction of a person,
including the making of a representation or the failure to make a representation. A duty
of care requires a person to act with reasonable care (or reasonable skill and care), as
opposed to requiring that a person ensures that another does not come to harm, or suer
a particular type of loss or damage.2
1 A-G (BVI) v Hartwell [2004] 1 WLR 1273 at 1278 (PC).
2 Matalan Discount Club (Cash & Carry) Ltd v Tokenspire Properties (North Western) Ltd [2001] EWHC Tech 449
at [59], per HHJ Seymour QC.
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10.02 Central to the concept of negligence is the notion of fault based upon careless
or unreasonable behaviour. Harm, loss or damage that occurs through no-one’s fault, as
a “piece of bad luck”,3 does not engage the law of negligence. As Lord Radclie held:
“[U]nless there has been something which a reasonable man would blame as falling beneath
the standard of conduct that he would set for himself and require of his neighbour, there has
been no breach of legal duty.”4
And more recently it was held:
“In legal formulations of the duty and standard of care, the central concept is reasonable-
ness … Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free
environment. e measure of careful behaviour is reasonableness, not elimination of risk.
Where people are subject to a duty of care, they are to some extent their neighbours’ keepers,
but they are not their neighbours’ insurers.”5
10.03 Unlike contractual obligations, which are created by agreement, and usually artic-
ulated in a written document (often heavily negotiated), the existence and scope of an
obligation in negligence is dened and imposed by law, not by agreement.6
Elements of negligence
10.04 ere are three essential elements to a cause of action in negligence:
• A owes B a duty of care in respect of a particular type of harm, loss or damage;
• A breaches that duty, by failing to exercise reasonable care; and
• as a consequence, B suers harm, loss or damage, being harm, loss or damage of the
type in respect of which the duty of care is owed.7
3 British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd [1975] 1 QB 303 at 309, per Lord Denning MR.
4 Bolton v Stone [1951] AC 850 at 868–869. See also State of NSW v Fahy [2007] HCA 20 at [7], per Gleeson CJ.
5 Swain v Waverley Municipal Council (2005) 220 CLR 517 at [5], per Gleeson CJ.
6 “Tort obligations are imposed on the parties; contractual obligations are voluntarily assumed”: Astley v Austrust
Ltd (1999) 197 CLR 1 at 36 [84] (see also Spandeck Engineering (S) Pte Ltd v Defence Science and Technology
Agency [2007] 4 SLR(R) 100 at [29] [Sing CA]). Hence, a duty of care may exist between parties who are not in
a contractual relationship; eg, where one person performs building work for another on a gratuitous basis, or for a
small fee: see, eg, James v Butler [2005] EWCA Civ 1014, where a builder assisted his neighbour for the daily fee
of £60 in constructing a conservatory. e carelessness of the builder caused his neighbour to suer an injury. e
builder owed the neighbour a duty to act carefully to ensure that his neighbour would not be injured. is case
provides a literal illustration of Lord Atkin’s “neighbour principle” (mentioned later) in operation.
7 Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 at 1622, per Millett LJ. See also Spandeck
Engineering (S) Pte Ltd v Defence Science and Technology Agency [2007] 4 SLR(R) 100 at [21] [Sing CA]; Luen Hing
Fat Coating and Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14 at 29 [21], per Bokhary PJ.
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