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1 STEP 1: BREACH
1. Breach has to be proved by:
a. Breach of standard of fact b. Breach of standard of care
2. IDENTIFY THE BEHAVIOUR OR ACTION THAT MAY HAVE BREACHED DOC a. Suzy might have breached her duty of care to ___ by __
b. First, we have to establish Suzy’s breach as a STANDARD OF FACT 3. ALWAYS START BY LOOKING AT THE CLA (Adeel’s palace)
a. “The High Court in Adeel’s stated that the proper approach is to commence a consideration of negligence, including breach, by first having regard to the civil liability legislation” -pg397
CLA - DIVISION 2 DOC – 5B & C!!!
4. START with breach of standard of care:
STEP 1: The categories influencing standard of breach
- Measured objectively not subjectively (
Vaughan v Menlove (1837))
o Standard
for judging negligence is “the conduct of a man of ordinary prudence” (Tindal CJ, at 474)
- AGE: Children
o McHale v Watson (boy aged 12 threw metal bolt at pole and hit girl blinding her in 1 eye)
Held: _____
- Mental illness
o Carrier v Bonham (schizophrenic patient who jumped in front of bus)
Abnormality of mind doesn’t attract special exemption - Leaner/apprentice
o Imbree v McNeilly (allowed inexperienced 16-year-old to drive and car lost control and seriously injured passenger (dad?))
o If supervisor could have influenced outcome = contributory negligence STEP 2 IS TO LOOK AT: Professionals
Is the defendant a professional with special skill or providing a service?
If NO SKIPPP all the steps below and go straight to duty to warn
IF YES! IMPORTANT TO SAY THAT PROFESSIONAL IS NOT DEFINED BY THE ACT - No provision in the CLA defines professional SAY THIS!!!!
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Professional? FOR BREACH DIV 6-5O5O (1) 1. A person practicing a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.
Rogers v Whitaker (surgeon conducted operation on right eye causing infection and almost turning P completely blind and he hadn’t informed her of the possibility of infection
50 (2) 2. peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
50 (3) 3. The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
5O (4) 4. Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Vaughn v Menlove: Reasonable person possesses the knowledge, skills, qualifications, and expertise of a specific class (teacher, engineer…) NOT the individual Defendant (suzy)
Q’s to ask:
o Is D a professional?
o Is D providing services?
o Is the service ‘widely accepted’
o Is the opinion ‘irrational’
IF NOT PROFESSIONAL SKIPP ALL OF THIS ABOVE AND MOVE ON TO THE NEXT STEP BELOW
DIVISION 6-5P: Division does not apply to duty to warn of risk
States: This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.
BASICALLY MEANS!!!!
- Even if it is professionally accepted if there was no warning then they are liable under this section
5. THEN with breach of standard of fact:
Ask: Did the D behaviour drop below the standard expected?
1.
START with Division 2 5B General principles
a. S5B(1)(a)
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and… (about foreseeability of risk)
i. Was the risk of harm foreseeable?
ii. Was the risk something D knew/ought to have foreseen CASES FOR S5B(1)(a): IN TABLE
2. NEXT look at s5B(1(b):
(b) the risk was not insignificant,
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a. Refers to the probability of the risk eventuating NOT the magnitude of the resulting harm DON’T TALK ABOUT MAGNITUDE OF HARM HERE!
i. Ask: How high is the prob of risk eventuating?
ii. Vincent v Woolworths:
CLA legislation Cases S5B(1)(a)
Was the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known),
Wyong Shire Council v Shirt (quadriplegic after hitting head on bottom of lake while water-skiing)
o Foreseeability and likelihood of X occurring are different????
Test is NOT about likelihood but about foreseeability
RTA v Dederer (Dederer jumped off bridge and gravely injured himself)
o THEORY CAME OUT OF IT: Must look at foreseeability prospectively NOT retrospectively
Prospective = Looking at the facts that were available at that time NOT
Retrospective = looking back with the knowledge and facts now known
Doubleday v Kelly (7-yeard-old kid injured from playing with roller skates on trampoline)
o Foreseeability of risk DOES NOT have to be the exact way it occurred but the general character
s5B(1(b):
(b) the risk was not insignificant,
Changed from not farfetched & fanciful (shirt) to not insignificant in CLA
Vincent v Woolwoorths Ltd: (Vincent stepped down a small ladder and collided with a shopping trolley pushed by customer)
PRINCIPLES:
o An occupier is entitled to expect that a person will take reasonable care for his or her own safety, especially if the person is involved in an everyday or commonplace activity like stepping down from a small step.
o The ‘risk’ of harm to be considered for purposes of s5B(1) is a risk of some appreciable personal injury
o Also not about the severity of the harm actually suffered but the risk occurring and foreseeability
S5B(1)(c) – in the circumstances, a reasonable person in the person’s position would have taken those precautions.
Shirt: what would the Reasonable person have done?
o Ex: A RP in the position of Suzy as a ___ with the duty to ___ should have ___
S5B(2)-In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
GO THROUGH ROMEO
Basically, the following factors are NOT essential elements but HAVE to be considered:
S5B2(a) = the probability that the harm would occur if care were not taken
Question – likelihood of risk eventuating if care wasn’t taken
Wagon Mound No2: It is JUSTIFIABLE not to do anything if the reasonable man wouldn’t have done anything
Romeo
RTA v Dederer: Q of whether reasonable care was exercised mist be judged prospectively not retrospectively
- Also must be determined objectively - Look at prob of risk faced
S5B2(b) = the likely seriousness of the harm (Gravity)
If they knew of a particular liability
Paris v Stepney Borough Council: (Garage worker with only one eye = injured and became blind)
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- Where the D knows of some vulnerability to greater injury on the part of the P, the seriousness of the potential consequences elevates the level of care required by the D - D must/ought to know of P’s particular susceptibility - The test is what precautions would the ordinary, reasonable and prudent man take?
S5B2(c) = the burden of taking precautions to avoid the risk of harm
Woods v Multi-Sport Holdings: (Adult hit while playing cricket) - Not reasonable to expect D to take protective
measures when none were designed and wouldn’t have been effective in preventing injury
- Risk was obvious to P – sign wasn’t required Neindorf v Junkovic: (unevenness of surface and neighbour tripped)
- Response of most people to hazards around their premises is to do nothing
- Unevenness of surface was so ordinary and visible that reasonableness did not require any action on the part of the occupier
Romeo v Conservation commission?????
P was drinking around some cliffs under management by D and she walked off the cliff no fencing
S5B2(d)- the social utility of the activity that creates the risk of harm
Looking at if risks outweigh social factors
E v Australian Red Cross Society (for the greater good) - If testing all blood transfusions will significantly
decrease the number of blood donations received
