Bale v Seltsam P/L [1996] QCA 288

Bale v Seltsam P/L [1996] QCA 288 - QCA 1996 case summary — Zoe

Parties

Applicant/Plaintiff:

# Bale

Respondent/Defendant:

Seltsam P/L \[1996\] QCA 288

Legislation Cited (2)

Shops Act 1900

Minister Administering the Environment Planning and Assessment Act 1979

Cases Cited (5)

Apart from the doctrine of Rylands v. Fletcher ([1866] [1865] EngR 436; L.R. 1 Ex. 265; [1868] L.R. 3 H.L. 330), and the possibility left open by the Privy Council in Overseas Tankship (U.K..) Ltd v. The Miller Steamship Co Pty [1966] UKPC 1; [1967] 1 A.C. 617, 639F that fault might not always be essential to liability for nuisance,[12] the common law has consistently rejected any notion of strict or absolute tortious liability for unintentional injury: see, for example, Read v. J. Lyons & Co. Ltd [1946] UKHL 2; [1947] A.C. 156, 172-173 per Lord Macmillan; Stevens v. Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; (1986) 160 C.L.R. 16, at p. 30 per Mason J., p. 42 per Wilson and Dawson JJ. However, the significance attached to dangerous activities or products was recognised in Lord Atkin's seminal judgment in Donoghue v. Stevenson [1932] A.C. 562.[13] At p. 596, his Lordship said that the following passage from Dominion Natural Gas Co. Ltd v. Collins and Perkins [1909] A.C. 640, 646 "exactly sums up the position":

Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasized in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur [See, e.g., Thompson v. Bankstown Corporation (1953) 87 C.L.R., at p. 645; Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 C.L.R. 40, at pp. 47-48]. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v. Fletcher is involved, the standard of care remains `that which is reasonable in the circumstances, `that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances' [Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle [1940] HCA 44; (1940) 64 C.L.R. 514, at p. 523]. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of `reasonable care' may involve `a degree of diligence so stringent as to amount practically to a guarantee of safety' [Donoghue v. Stevenson [1932] A.C., at p. 612, per Lord Macmillan; Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle (1940) 64 C.L.R., at p. 523, per Starke J.; and, generally, Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R., at pp. 30, 42]."

"As was pointed out in the recent majority judgment in Burnie Port Authority v. General Jones Pty. Ltd. [(1994) [1994] HCA 13; 179 C.L.R. 520, at p. 543, per Mason C.J., Deane, Dawson, Toohey and Gaudron JJ.; and see also Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [1986] HCA 1; (1986) 160 C.L.R. 16, at p. 53], the overriding requirement of a relationship of proximity represents the conceptual determinant and the unifying theme of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. There is no decision of the Court which directly determines the question whether the relationship between Mr. Bryan, as the builder of the house, and Mrs. Maloney, as a subsequent owner of it, possessed the requisite degree of proximity to give rise to a duty, on the part of Mr. Bryan, to take reasonable care to avoid the kind of economic loss sustained by Mrs. Maloney. Necessarily, as has been indicated, the resolution of that question requires the articulation of both the factual components of the relevant category of relationship and the identification of any applicable policy considerations. Ultimately, however, it is a question of law which must be resolved by the ordinary processes of legal reasoning in the context of the existence or absence of the requisite element of proximity in comparable relationships or with respect to comparable acts and/or damage. Accordingly, it is appropriate to approach the question through a consideration of some related situations."

The question whether the appellant is liable turns upon the degree of proximity between the negligent act (strictly speaking, the class of negligent cat) relied upon by the respondent and the kind of damage sustained by her [Jaensch v. Coffey [1984] HCA 52; (1984) 155 C.L.R. 549, at pp. 581-582; Hawkins v. Clayton (1988) 164 C.L.R. 539, at p. 576]. Gibbs C.J. observed in Sutherland Shire Council v. Heyman [(1985) [1985] HCA 41; 157 C.L.R. 424, at p. 441]:

If the facts fall into a category which the authorities already recognize as attracting a duty of care, then, as Gibbs C.J. acknowledged [(1985) [1985] HCA 41; 157 C.L.R. 424, at p. 441], this process will not be necessary. But in the present case the facts do not fall into a category which this Court, at any rate, has recognized as attracting a duty of care."

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (5)