I recently read Waine v Carnival PLC t/as P&O Cruises Australia [2022] NSWDC 650. This case may be of interest to students in my Torts Law class. The plaintiff was 15 weeks pregnant when she started to show signs of losing her baby. At the time she was enjoying a...
Duty of Care and Climate Change…
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Medical Negligence, Causation and Bariatric Surgery!!!
Woohooo…I am teaching causation in negligence actions again!! Causation is kinda cool but can also be super tricky… Essentially causation in a negligence action, relates to whether or not the defendant (alleged wrongdoer) caused the harm to the plaintiff (person who...
Social Media and Criminal Law- Revenge Porn, Cyberbullying and Harassment!!!
This week we investigated the intersection between social media and criminal law in my Social Media Law course. I will be honest and tell you I was both appalled and confused by many of the cases and incidents which are cited relating to criminal activities which take...
Social Media and Litigation- Using Social Media Content as Evidence and Other Notable Issues!!!
Many of us post about our lives on social media regularly. In fact, some may argue- ‘if it wasn’t posted on social media, did it really happen!!!’ If you are a party to litigation, this habit may create some hassles… Let’s consider a case where a party to...
Nothing gets people more excited than talking about owing duties of care. For the uninitiated, duty of care in a negligence action relates to whether or not a defendant owes a legal duty to another.
Within a negligence action, finding a duty of care is often easily achieved- in many circumstances anyway!!! The straight forward circumstances include relationships such as:
* employer/employer
* doctor/patient
* teacher/student…
There are lots of other situations though where finding a duty of care is difficult and complicated… Some examples include where police and other public authorities owe duties to others.
One recent example of a novel duty is Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560. In this case Justice Bromberg of the Federal Court of Australia held that a novel duty of care applied to a government decision maker- when approving a coal mine extension under Commonwealth environmental legislation. This was in light of the approval process relating to the Vickery Coal Mine.
Justice Bromberg noted: ‘In this case, the applicants rely on the intensity of exposure to harm and thus the significance of risk of harm as a defining characteristic which distinguishes children from adults. The duty that they contend for is a duty to the Children, at least in part, because they (and not today’s adults) will live on Earth in about 80 years’ time when, on the evidence, there is a significant risk that in a 4°C Future World those persons now alive and likely to be then alive will likely be subjected to catastrophic harm.’
In essence Bromberg J found the Environment Minister owed a duty of care to the group of young campaigners when determining approval to expand the mining project. So, it was found that a reasonable Environment Minister needed to consider the interests of children and potential future personal injury of children, when making environmental decisions!!
Justice Bromberg’s decision was overturned earlier this year by the Full Federal Court of Allsop CJ, Beach and Wheelahan JJ. In this case it was decided that Minister did not owe the relevant duty of care. There were a number of reasons for this, including issues of causation and indeterminacy.
It is likely this will be an ongoing issue, which may soon be addressed by the High Court in Pabai Pabai v Commonwealth of Australia.
How fabulous is the law of torts!!!