It seems to me, as Eoin's email demonstrates, that this case should

really be analysed as turning on breach/fault, not duty of care.

Best wishes

Janet

Neil Foster wrote:

> Forwarded on behalf of Eoin Quill.

> Regards

> Neil

> Neil Foster

> Senior Lecturer & LLB Program Convenor

> School of Law

> Faculty of Business & Law

> University of Newcastle

> Callaghan NSW 2308

> AUSTRALIA

> ph 02 4921 7430

> fax 02 4921 6931

> ------------------------------------------------------------------------

> Subject:

> RE: Duty of care re petrol spill from truck

> From:

> "Eoin.Quill" <eoin.quill@ul.ie>

> Date:

> Thu, 08 Oct 2009 08:43:50 +0100

> To:

> Neil Foster <Neil.Foster@newcastle.edu.au>

> To:

> Neil Foster <Neil.Foster@newcastle.edu.au>

> Neil, I don’t have quite the sense of surprise you do. I have more

> difficulty with an Irish decision where a crash resulting from a fuel

> leak in somewhat different circumstances was found not to generate

> liability - Rothwell v MIBI [2003] IESC 16; [2003] 1 IR 268; [2003] 1

> ILRM 521.

> It may seem harsh (when you hit a rock, you don’t think ‘fuel tank?’ –

> I certainly don’t), but on the objective interpretation of reasonable

> care used by courts (which is often tainted with hindsight, whatever

> the judges say) it has to count as one of the possibilities that would

> have occurred to a reasonable person – it’s rare, but not outside the

> bounds of possibility, that a fuel tank will be ruptured. Reasonable

> care has become a very exacting standard in many cases, including road

> accidents, and is getting closer to strict liability in effect and the

> reasonable person, as legally defined, is an extremely rare and

> exceptional creature not actually known to live amongst the

> populations ruled by this legal standard. I don’t have a difficulty

> with that, except I would prefer the honesty of dropping ‘reasonable’

> and calling it strict liability.

> Eoin Quill

> University of Limerick

> (You might forward this to the discussion group, please. I have some

> administrative/technical impediment on sending direct. Thanks)

> ------------------------------------------------------------------------

> *From:* Neil Foster [mailto:Neil.Foster@newcastle.edu.au]

> *Sent:* 08 October 2009 02:20

> *To:* obligations@uwo.ca

> *Subject:* ODG: Duty of care re petrol spill from truck

> Dear Colleagues;

> An interesting decision from the NSW Court of Appeal in //Sullivan v

> Stefanidi// [2009] NSWCA 313 (2 October 2009)

> http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/313.html.

> A truck driver (A) hears a noise which implies his truck has been hit

> by a rock. He decides to carry on anyway and not until 30 mins down

> the road does he realise he has been leaking fuel at a great rate. In

> the meantime another truck driver (B), coming from the same direction,

> skids on the spilled fuel and is involved in a serious accident. Does

> the injured truck driver have an action in negligence against the

> first one?

> Surprisingly, to my mind, the CA says yes. Driver A should have

> stopped to check the result of the impact; if he did, the evidence

> showed that he would have noticed the leak; he had a two-way radio by

> which he could then have alerted other truck drivers; the trial judge

> obviously accepted (though interestingly even this was not clear- see

> [13]) that if he had done so, driver B would have heard the radio

> message and could have done something to avoid skidding on the spill.

> The major problem with the decision, which for some reason is not even

> discussed in the judgment, is the question of duty of care. It may be

> that everyone assumed that road users owe other road users a duty of

> care not to cause personal injury. But of course that general duty has

> to be qualified by other principles, and a major principle is that the

> law does not usually impose a duty in relation to "omissions" as

> opposed to positive acts.

> The difference between the 2 seems to be the core of the issue here-

> no doubt if the driver had consciously dumped a load of fuel on the

> road he could not avoid responsibility by claiming it was merely an

> "omission" to clean it up. But the tricky question here is- suppose

> you are not actually aware that you have created a risk to other

> drivers? Is it an act or omission to make inquiries about the

> existence of a risk?

> I suppose the logic of the CA decision is this: if you negligently

> create a risk to other drivers, you have a duty to make a reasonable

> response. Your response to the risk will vary with the circumstances.

> But if you already have a means of warning about the risk to a class

> of other road users (here other truck drivers with the right type of

> radio communications) then you are obliged to (1) take reasonable care

> to determine whether a possible risk has been created; (2) give a

> warning to those you are reasonably able to warn.

> By the way, on an unrelated matter, if anyone is interested in

> fiduciary duties owed by employees, conflict of laws relating to

> Kazakhstan, and a set of facts that sounds like it came out of a John

> Le Carre novel, see the fascinating decision of Einstein J in

> **Michael Wilson and Partners Limited v Robert Colin Nicholls & Ors

> [2009] NSWSC 1033 (6 Oct 2009)

> http://www.lawlink.nsw.gov.au/scjudgments/2009nswsc.nsf/6ccf7431c546464bca2570e6001a45d2/ee931be0f63be326ca257640001b2fd9?OpenDocument

> .**

> Regards

> Neil F