Negligence and Duty of Care in Wollongong Council Case

This document discusses the negligence and duty of care in the case of Wollongong Council. It covers the rules and applications of contributory negligence, voluntary assumption of risk, and economic loss. The document also provides relevant case laws and references.

COMMERCIAL LAW

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ISSUE NO. 1
Whether a duty of care is owed by Wollongong Council?
RULE NO. 1
A duty of care is referred to a moral or legal obligation which is imposed on a party to
ensure that he/she maintains the safety or well-being of others. In a suit for negligence, it is
important that the defendant must owe a duty towards the plaintiff. Donoghue v Stevenson
(1932) AC 532 case can be referred in order to assess whether a party owes a duty or not. In
this case, the court provided neighbour test which provides two elements for establishing a
duty. Firstly, the parties must be in a proximity relationship. Secondly, the injury or risk of
negligence of must foreseeable (Jones, 2017).
APPLICATION NO. 1
For holding Wollongong Council liable to pay damages, it is important that Peter proves that
it owes a duty of care. Both the parties are in a proximity relationship since the council
manages future projects in the area which can affect the investments of parties. The risk or
injury of negligence by the council is also foreseeable since it adversely affects the interest
of investors. Therefore, the duty of care is owed by the council to maintain a standard to
avoid causing harm to third parties.
CONCLUSION NO. 1
To conclude, a duty of care is owed by Wollongong Council.

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ISSUE NO. 2
Did the actions of Wollongong Council breach its duty of care?
RULE NO. 2
A party can be held liable in a suit for negligence if they failed to act in a reasonable manner
to protect the safety of others. A party who owes a duty of care has to ensure that a
standard is maintained which is expected for a reasonable person in a particular situation.
The judgement of Bolton v Stone [1951] UKHL 2 can be referred to understand this point. In
this case, the court provided that duty is violated if the person who owes the duty did not
act in a reasonable manner in relation to ensures the safety of others (Monaghan, 2015).
APPLICATION NO. 2
A duty was owed by Wollongong Council based on which it was expected from the council
to maintain a standard to ensure safety of third parties. This standard was not maintained
by the council since it failed to include relevant information in the certificate which is
referred by investors before purchasing property in the area. It is expected for a reasonable
person that they would include relevant data in the certificate to avoid damages suffered by
third parties based on which the council violated its duty.
CONCLUSION NO. 2
To conclude, Wollongong council has breached its duty of care.

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ISSUE NO. 3
Did Peter’s loss directly suffered due to actions of the council and whether the loss is too
remote?
RULE NO. 3
Causation is a relevant element in a suit for negligence which provides that injuries suffered
by the plaintiff must be caused due to failure of the defendant to maintain a standard of
care. If the loss of the plaintiff is caused due to other factors, then the defendant who owes
the duty cannot be held liable. Furthermore, aggrieved parties can only claim damages for
those injuries which are not too remote in a suit for negligence. In Overseas Tankship (UK)
Ltd v The Miller Steamship Co [1967] 1 AC 617 case, the court rejected the claim for
damages by providing that the loss was too remote (Witting, 2018).
APPLICATION NO. 3
Peter would not have invested in the area if he knew about the road widening project; thus,
the loss suffered by him is caused due to negligence of the council based on which the
element of causation is present. The road widening project reduced the investment value of
Peter which is a foreseeable outcome of the negligence by the council. Thus, the loss
suffered by Peter is not too remote as well.
CONCLUSION NO. 3
To conclude, causation is present in the case, and the loss of Peter is not too remote based
on which he can hold the council liable for a suit for negligence.

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ISSUE NO. 4
Whether the defence of contributory negligence is available for Wollongong Council?
RULE NO. 4
The defence of contributory negligence provides that if the plaintiff did not maintain a
standard to ensure his/her safety, then the amount of damages paid by the defendant can
be reduced. Imbree v McNeilly [2008] HCA 40 case can be referred in this context. In this
case, the court reduced the amount of damages by 30 percent by providing that the plaintiff
knew that the defendant did not know how to properly drive a car still he gave his car to
him (Erbacher, 2017).
APPLICATION NO. 4
Before purchasing the property, Peter did not bother to read the certificate issued by
Wollongong Council in which it includes details regarding future projects. However, only
Peter knows about his mistake, and it is difficult to put blame on him.
CONCLUSION NO. 4
To conclude, the payment of damages cannot be reduced by Wollongong Council based on
contributory negligence.

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ISSUE NO. 5
Whether the defence of voluntary assumption of risk is available for Wollongong Council?
RULE NO. 5
The amount of damages paid by the defendant in a suit for negligence could be reduced or
eliminated by the court if the party agreed to the risk involved in the particular scenario.
Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 case can be referred in
this context. The court provided two elements in this case which are necessary to be
present to rely on this defence. The plaintiff must voluntarily give consent to accept the
risks, and an agreement must be formed between the parties (Hodgson, 2016).
APPLICATION NO. 5
Peter did not voluntarily give his consent to accept the risk to Wollongong Council. The
parties also did not enter into an agreement to accept the risk; thus, this defence cannot be
applied in this case.
CONCLUSION NO. 5
To conclude, the council cannot reduce the amount of damages by relying on this defence.

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ISSUE NO. 6
Whether Peter can recover damages for economic loss?
RULE NO. 6
The court provided ‘Caparo test’ which can assist in determining whether economic loss can
be received by a party in the judgement of Caparo Industries PLC v Dickman [1990] UKHL 2.
It was held that the party against whom the suit for negligence is filed must owe a duty and
such duty must be violated. The court should also consider that it is fair to impose the
liability on the defendant to pay for the damages (Mitchell et al., 2016).
APPLICATION NO. 6
Peter has suffered substantial loss due to the negligence of the council. A duty was owed by
the council to keep the certificate updated. Such duty was violated by the council, and it is
fair to impose liability of the council for the loss of Peter.
CONCLUSION NO. 6
To conclude, Peter has the right to recover economic loss from the council.

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REFERENCES
Bolton v Stone [1951] UKHL 2
Caparo Industries PLC v Dickman [1990] UKHL 2
Donoghue v Stevenson (1932) AC 532
Erbacher, S. (2017) Negligence and illegality. London: Bloomsbury Publishing.
Hodgson, D. (2016) The law of intervening causation. Abingdon: Routledge.
Imbree v McNeilly [2008] HCA 40
Jones, L. (2017) Introduction to business law. Oxford: Oxford University Press.
Mitchell, C., Ploem, M.C., Hennekam, R.C.M. and Kaye, J. (2016) A duty to warn relatives in
clinical genetics: arguably ‘fair just and reasonable’in English law?. Tottel's journal of
professional negligence, 32(2), p.120.
Monaghan, C. (2015) Beginning Business Law. Abingdon: Routledge.
Overseas Tankship (UK) Ltd v The Miller Steamship Co [1967] 1 AC 617
Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360
Witting, C. (2018) Street on Torts. Oxford: Oxford University Press.