2
BREACH ... 5
STANDARD OF CARE ... 5
General ... 5
Age/Children ... 5
Mental illness/disability ... 5
Knowledge/Skill ... 5
Professionals ... 5
Failure to Warn ... 5
REASONABLE FORESEEABILITY +NOT INSIGNIFICANT ... 6
Test ... 6
Reasonable foreseeability ... 6
‘Not insignificant’ ... 6
CALCULUS OF NEGLIGENCE ... 6
Test ... 6
Probability of harm ... 6
Gravity of likely seriousness of the harm ... 6
Burden of taking precautions ... 6
Social utility ... 7
CASES ... 7
Standard of care ... 7
McHale v Watson (1966) ... 7
Carrier v Bonham (2001) ... 7
Imbree McNeilly (2008) ... 7
Rogers v Whittaker(1992) ... 7
Reasonable foreseeability/not insignificant ... 8
Doubleday v Kelly (2005) ... 8
Wyong v Shirt (1980) ... 8
Calculus ... 8
Bolton v Stone (1951) ... 8
Rta v Dederer (2007) ... 9
Parisv Stepney Borough (1951) ... 9
Woods v Multi Sport Holdings (2002)... 9
LEGISLATION ... 10
5B General principles ... 10
5O Standard of care for professionals ... 10
5P Division does not apply to duty to warn of risk ... 10
CAUSATION ... 11
LEGISLATION ... 11
ELEMENTS ... 11
LIMITATIONS... 11
Novus actus interveniens ... 11
Multiple Successive Causes ... 12
Exceptional cases ... 12
FAILURE TO WARN ... 12
CASES ... 12
‘But for’ test ... 12
March v Stramare 1991 HCA ... 12
Amaca v Ellis 2010 HCA ... 12
Adeels Palace v Moubarak 2009 HCA Facts ... 12
Strong v Woolworths 2012 HCA ... 13
Novus actus interveniens ... 13
Chapman v Hearse 1961 HCA ... 13
Haber v Walker [1963] VR 339 ... 13
Mahoney v Kruschich Demolitions 1985 HCA ... 13
Caterson v Commissioner for Railways 1973 HC ... 13
Haynes v G Horwood & Sons 1935 ... 13
Multiple Successive Causes ... 14
Baker v Willoughby ... 14
Jobling v Associated Dairies (1982) ... 14
REMOTENESS ... 15
ELEMENTS ... 15
Eggshell Skull ... 15
CASES ... 15
5
Breach
To establish the tort of negligence, P needs to show that D failed to meet the required standard of care that they owed to the P.
In order to determine this, it is necessary to ascertain the relevant standard of care, whether the risk of injury to the P was reasonably foreseeable and whether D’s response to that risk was reasonable in the circumstances.
Standard of care General
Except in particular circumstances, the standard of care expected of the defendant is that of the ‘reasonable person’: Glasgow v Muir (1943)
Age/Children
Age can be taken into consideration when establishing the standard of a reasonable person: McHale v Watson (1966)
o A child is only expected to conform to the objective standard expected for children of similar age and experience: McHale v Watson (1966)
Mental illness/disability
The reasonable person test does not require consideration for a person’s disabilities: Carrier v Bonham (2001)
o “Unsoundness of mind is not a normal condition in most people, and it is not a stage of development through which all humanity is destined to pass…it would be impossible to devise a standard by which the tortious liability of such persons could be judged as a class.”
Knowledge/Skill
Lack of knowledge or skill cannot be taken into consideration in the ‘reasonable person’ test: Imbree McNeilly (2008)
Professionals
The standard of care for a professional in the provision of professional services is that they act in a manner which is widely accepted in Australia by peer professional opinion as competent professional practice:
s5O(1) CLA
o However, peer professional opinion will not be relied on if it can be considered irrational: s5O(2) o Widely accepted ≠ universally accepted: s5O(4) CLA
o Varying opinions can be relied upon: s5O(3) CLA
Test
o Is the person a professional?
o Is the person providing services?
o Is the manner in which the professional was acting ‘widely accepted’?
o Is the opinion irrational?
Failure to Warn
The standard of care of a doctor in providing advice and information expects that the doctor will warn his patients of ‘material’ risks associated with the provision of their treatment (service): Rogers v Whitaker (1992); s5P CLA
o A risk will be material if a reasonable person in the patient’s position, if warned of the risk would be likely to attach significance to it, or if the medical practitioner is or should reasonable be aware that the particular patient, if warned of the risk, would be likely to attach significance to it: Rogers v Whitaker (1992)
6
Reasonable foreseeability + Not insignificant Test
D cannot be said to have breached the standard of care if the risk was not foreseeable, not insignificant and they took the same precautions as a reasonable person in their position: s5B(1)(a).
Reasonable Forseeability
As such, it is necessary to determine whether or not the relevant risk of harm was foreseeable: s5B(1)(a)
This assessment must be made prospectively: RTA v Dederer (2007)
Reasonable foreseeability
Harm
Harm is defined as ‘harm of any kind including personal injury or death, damage to property and economic loss’: s5 CLA.
The relevant harm in this case is….which accords with this definition.
Foresight
The relevant consideration is whether the person themselves knew, or a reasonable person in their position ought to have known of the risk of harm: s5B(1)(a) CLA
Particular or special knowledge on the part of the D may be relevant to the foreseeability of the harm: Paris v Stepney Borough Council (1951)
o In this case the D knew of the P’s particular vulnerability to blindness because he was already blind in one eye
‘Not insignificant’
A risk has held to be ‘not insignificant’ where it is ‘not far-fetched or fanciful’: Doubleday v Kelly (2005) or at most a slightly more demanding standard than this: Shaw v Thomas
Calculus of negligence Test
Once the court has determined that the risk is foreseeability and it is not insignificant , it is necessary to determine whether the reasonable person in the D’s position would have taken precautions against the risk of harm: s5B(1)(c)
It is necessary to undertake a ‘contextual and balanced assessment of the reasonable response to a foreseeable risk’ and in doing so consider: s5B(2); RTA v Dederer (2007)
o Probability of harm
o Likely seriousness of the harm o Burden of taking precautions o Social utility
Probability of harm
Obviousness of the risk may be relevant to the probability that harm will occur: Nagle v Rottnest (1993)
If the probability of the risk occurring is small it may be justifiable not to take steps to eliminate it: Wagon Mound (No 2)
Where it is common for people to engage in risky behavior without any harm eventuating, the probability of that harm occurring is therefore quite low: RTA v Dederer (2007)
Gravity of likely seriousness of the harm
Where the likely seriousness of an injury is the same for all, the standard of reasonable care is the same for all. However, where the seriousness of potential consequences is greater for one person because of some particular vulnerability, and the D knows of that vulnerability, this elevates the level of care required by the D: Paris v Stepney Borough Council (1951)
Burden of taking precautions
To determine what precautions the reasonable person would have taken, the court balances the gravity and probability of harm against the burden of taking precautions: Woods v Multi Sport Holdings (2002)
7
‘Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into the relationship may be significant: Woods v Multi Sport Holdings (2002)
The D may not be required to take precautions where relevant equipment/materials for taking such
precautions are not readily available or such precautions are not conventionally put in place: Woods v Multi Sport Holdings (2002)
Social utility
Where the burden of taking precautions is greater than a potential detriment to society, or will decrease a potential benefit to society, it may be reasonable that the D had not taken such precautions: E v Aus Red Cross (1991)
Cases
Standard of care
McHale v Watson (1966) Children
Facts
A 12 year old boy threw a piece of steel, about 15cm long and sharpened at one end, at a wooden post forming a guard around a tree
The P was standing near the D and was hit in the eye when the steel either missed or glanced off the tree
She was blinded Held
The court held that it could not disregard the fact that the boy was 12 years old at the time of the accident and that the boy’s behavior was to be judged according to the standard of another 12 year old boy
Carrier v Bonham (2001) Facts
The defendant tried to comit suicide by throwing himself under a bus causing psychological harm to the bus driver
The court found that the defendant would not have had any concept that his actions might cause harm to anyone else
Held
The court applied an objective test to the conduct of the D
The reasonable person test does not require consideration of a person’s disabilities
Imbree McNeilly (2008) Facts
The appellant was severely injured when he let the respondent, aged 16 drive a four-wheel drive in the Northern Territory. The appellant knew the respondent didn’t have a learner’s permit at the time.
Held
Knowledge of inexperience cannot provide a sufficient foundation for applying different standards of care
If any consideration for the respondent’s inexperience was made, it came at the stage of damages where there was a 30% reduction for the appellant’s contributory negligence
Rogers v Whittaker(1992) Facts
Appellant was an ophthalmic surgeon and the respondent his patient who became almost totally blind after he operated on her right eye.
The possible negligence he committed was not in the procedure itself, but in the failure to warn the respondent of a 1/14,000 chance of a rare complication which would blind her good eye.
