Heller And Partners Case Summary

The tort law section that falls into this case is negligence. Negligence is made up of three elements which determine negligence and duty of care is owed in this case State of Victoria v Bryar [1970] 44 ALJR 174.

The case was brought forward to the NSW Supreme Court in 2001 whereby Judge Hulme ordered both Respondents as negligent. This decision was reversed by the Supreme Court of Appeal whereby the judgement was granted in favour of the Respondents. This case affirms the previous decision.

However, Menzies J, in his dissenting judgment, found no issue in differentiating the objective test used to determine negligence in an act against another, and the subjective test employed in contributory negligence, in the plaintiff’s lack of care for themselves. Furthermore, to allow for the subjective standard of age would, in his opinion, precipitate the use of other special standards for other groups of lesser capacity than the ordinary person. He judged that the respondent should have been held to the standard of a reasonable man. But even if the standard is to that of an ordinary child, he held it was still negligent to have thrown a dart in such a fashion in the direction of another person.

This case considered the issue of negligent misstatements and whether or not a council owed a duty of care in relation to the public exhibition of development plans to a developer who suffered a financial loss when the development plans were later not adopted by the council.

With regard to Ms. Green’s claims against O’Brien, it is apparent that Ms. Green was O’Brien’s client, and that O’Brien owed Ms. Green a duty. Should this case proceed to trial we do not anticipate that we would argue to a jury that O’Brien did not neglect this duty. Rather, there are serious questions as to whether “the negligence resulted in and was the proximate cause of loss to the client.” Kendall v. Rogers, 181 Md. 606, 611-12 (1943). Indeed, the estate will have to demonstrate that Ms. Green would have prevailed in proving that one or both health care provider defendants committed medical negligence that caused her to fall into the diabetic coma.

It was decided that if the “representor gave information-or advice which was negligent he would be liable for any pecuniary or personal damage-caused”5. However the appeal was dismissed due to the fact that with “the absence of a contract or fiduciary relationship” the defendant that used a disclaimer would owe no duty of care.6 The case was significant in that claims on negligent misstatement could work if; there is a special affiliation among parties, the information provided by a party has a voluntary assumed risk, the plaintiff has to deem the information reliable, and finally the reliability of the information must be applicable. 

BARBARA J. O'NEIL et al., Plaintiffs and Appellants, v. CRANE CO. et al., Defendants and Respondents.

This Defendant now seeks summary judgment against the Plaintiff’s negligence claims because (1) this Defendant owed the Plaintiff no duty with regard to the incident made the basis of this suit; and (2) no act or omission on the part of this Defendant was a proximate cause of the subject incident or of the Plaintiff’s resulting injuries.

* Where both the parties seem to have been negligent, it is important to determine who is more at fault and for this purpose we need to use the ‘but for’ test as in the case of Cork v Kirby Maclean [1952] 2 ALL ER 402.

The case study I choose was Pao v. Kleiner Perkins a sexual discrimination case brought by a former junior partner at the venture capitalist firm of Kleiner Perkins Caulfield & Byers LLC. Ellen Pao alleged she was discriminated against on the basis of her gender when the firm failed to promote her to general partner status. To support her claim, Pao pointed to the promotion of several of her male colleagues. One such colleague, with whom Pao had a relationship, allegedly subjected her to retaliation following the conclusion of their consensual sexual relationship. Pao blamed her lack of promotion on the allegedly rampant sex discrimination throughout the firm, which allegedly included holding all-male dinner parties and ski trips, asking female partners to take notes during meetings, placing male partners on significant accounts and boards in lieu of women, and excused sexual harassment from male partners.

“In the majority of cases that come before the courts, whether the defendant owes the plaintiff a duty of care can be determined from precedent created by earlier cases; for example manufacturers of goods owe a duty of care to consumers, motorist owe a duty of care to other road users, boat captains owe a duty of care to their passengers, teacher owe a duty of care to their students, occupier owe a duty of care to persons who come on to their property. . (Andy Gibson, Douglas Fraser, Business Law 5th edition, Pearson 2011 page No.165, 166 and 169).”

The issue is whether the defendant owed a duty of care to a person in the position of the plaintiff – i.e., that they belong to the class of person who the defendant should have been aware of when doing the culpable act.

In recent years, Queensland has made changes to legislation in this area of law after seeing an increase number of negligent claims. Professional negligence claims include all areas of the health industry, workplace incidents particularly within the building industry, education and personal industry. The statement “the common law approach to negligence is all that is needed to effectively regulate this area of law”, is not entirely true as a more detailed and harsher approach to negligence, such as legislation, would be greatly beneficial in approaching negligence. “Common law is defined as law that has been developed on the basis of preceding rulings by judges. Statutory laws are written laws passed by legislature and government of a country and those which have been accepted by the society.” (Diffen, 2017). It is argued that common law is simply not enough to adequately protect Australian citizens in claims of negligence. Hence in courts it could be argued that common law application is unreliable due to the myriad of circumstantial negligent situations. Therefore government intervention provides a safety net for courts to apply legislation to each case. The purpose of this essay [presentation] is to disprove that common law is all that is needed in the interpretation of negligent cases. This will be achieved by examining the legislation and case law.

Evaluate the decision of the United Kingdom Supreme Court in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11, [2016] AC 677, [2016] 2 WLR 821

Further to the general negligence position on public bodies, in instances of omissions the general principle is that there is no duty to act unless a special relationship exists. However, there is an exception, a duty is owed if proximity is established as demonstrated in Home Office v Dorset Yacht Co Ltd [1970] UKHL 2.