#7170 - Breach Of Duty - Torts B

P will allege D breached the duty by [per facts]. To show breach, a standard of care must be imposed, and P must show D fell short of the standard, that the risk of harm was RF and the risk was not insignificant.

1. Past decisions of higher courts are not binding on lower courts (given the variations in facts that may arise and since breach is a question of fact) but can be used to guide the decision (Qualcast).

2. There are no degrees of breach; either a breach occurred or it did not.

Under WA s 48(1)(c) D can be held to be in breach of duty for failing to take precautions if a RP in D’s position would have taken those precautions. This codifies common law, meaning RP retains the meaning of an ‘ordinary prudent person’ (Vaughan v Menlove). The standard is assessed according to knowledge a reasonable person would have had at the date of the alleged negligence, not at the date of judgment (Roe v Minister for Health).

In certain situations, the SOC may be modified.

Characteristics reducing or not changing the standard of care

1. A minor will be held to the standard of care of an ordinary child of comparable age: McHale v Watson

   • P may argue that the particular intelligence/experience of [X] should modify the standard upwards from that of an ordinary child of that age; this question is open. However, it is likely that this argument will not be successful.

2. There is little authority to show whether physical disability is taken into account in setting a standard.

   1. Menzies J in McHale v Watson held in his dissenting judgment that a person under a disability is only required to take such reasonable care for his own safety as his capabilities permit; however this is obiter of only one judge.

   2. It is likely that even if it does modify the standard, the operative issue would be whether the person was negligent for having allowed himself/herself to be in the risk creating situation in the first place in light of their disability.

3. A D with a mental impairment (even if it reduces cognitive and foresight capacities) will still be held to the normal standard of a reasonable mentally competent person (Carrier v Bonham).

4. Where a person undertakes an activity as a learner or is inexperienced, he or she will still be held to the same standard of care as the ordinary reasonable and experienced person undertaking that activity (Imbree v McNeilly)

5. [any other factor per facts]. The general rule is that the standard of care will not be reduced to reflect personal characteristics (Vaughan v Menlove).

   1. Lack of capability/stupidity does not reduce the standard (Vaughan v Menlove).

   2. Arguably the judgments in McHale v Watson indicate that where a personal characteristic is a normal stage of human development, rather than an idiosyncrasy, that characteristic will be allowed to modify the standard.

Characteristics increasing the standard of care

A person with special skills will be held to the standard of care of a reasonable person possessing those special skills (Philips v William Whiteley). The standard of the RP is assessed according to what could be expected of a reasonable person possessing the skills as at the date of the alleged negligence, not at a later date such as the time of judgment (WA s 58(b)).

1. A person holding themselves out as having certain special skills (whether or not they do) will also be held to the standard of care of a RP actually possessing those skills (WA s 58(a)).

2. A person without special skills, and not holding himself out as having them, in performing acts that a person with special skills would perform, will not be held to the standard of a person with those special skills (Philips v William Whiteley).

The WA s 48(1)(a) states D is not negligent for failing to protect against a risk of harm unless he or she knew or ought to have known of the risk. This codifies Wyong v Shirt, which tells us that a risk of harm was RF if a RP in D’s position would have foreseen that the kind of carelessness alleged against D might cause damage of some kind to P, or to a class of persons to which P belongs.

1. A reasonable person would have foreseen the risk if it was real, that is, not far-fetched or fanciful (Wyong).

   1. A risk which is extremely unlikely to occur may be foreseeable, as long as the risk is real (Wyong)

A person is not negligent in failing to take precautions against a risk of harm unless the risk was not insignificant: s 48(1)(b). The legislation simply states:

3. that insignificant risks can includes more than simply those risks that are far-fetched or fanciful: WA s 48(3)(a)

4. that risks that are not insignificant are not limited to significant risks: WA s 48(3)(b).

If a RP in D’s would have taken precautions, D will have breached the DOC to P by not taking them (WA s 48(1)(c)). The negligence calculus (from common law, now codified in WA s 48(2)) considers factors courts will take into account, along with other relevant things, to decide what a RP would have done.

Probability of harm

Under WA s 48(2)(a), courts must consider the probability that harm would occur if care were not taken. The greater the probability, the greater degree of care a RP would have taken (Bolton v Stone).

[Note whether probability high/moderate/low and whether the factor indicates RP would have taken precautions]

Seriousness of harm

Under WA s 48(2)(b), the court must consider the likely seriousness of the harm if it eventuated. The more serious, the greater the degree of care a RP would have taken (Paris v Stepney Borough Council).

1. D’s knowledge of any particular susceptibility of P to harm will be taken into account (Paris v Stepney Borough Council).

   1. This may result in a D being required to take greater precautions with respect to one person than to another (Paris v Stepney)

   2. An employer who is unaware of special susceptibility of an employee is entitled to assume they are normal and take no greater precaution for their safety (Wodrow v Commonwealth of Australia)

[Note level of seriousness and whether the factor indicates RP would have taken precautions]

Burden of taking precautions

Under WA s 48(2)(c), the court must consider the burden of taking precautions to avoid the risk of harm. The greater the burden involved in taking the precautions, the less likely it is that the RP would have taken them (Graham Barclay Oysters).

1. The burden of taking precautions includes the burden of avoiding similar risks (WA s 49(a))

2. The fact harm could be avoided by doing something different does not of itself evidence breach (WA s 49(b))

3. The fact D takes action subsequent to harm occurring that (if it had been taken) would have avoided a risk of harm does not of itself evidence a breach (WA s 49(c)).

[Note whether burden great/moderate/low and whether the factor indicates RP would have taken precautions]

Social utility of the activity causing the harm

Under WA s 48(2)(d), the court must consider the social utility of the activity that creates the risk of harm. The greater the public benefit flowing from the activity, the less likely a RP would have taken precautions undermining that public benefit (Watt v Hertfordshire County Council).

1. Where an activity involves saving human life or limb, it is more likely a RP would have taken considerable risk in pursuing that activity (Watt v Hertfordshire).

[Note whether social utility high/moderate/low and whether the factor indicates RP would have taken precautions]

‘Other relevant things’

Under WA s 48(2), the court is to consider ‘other relevant things’ in deciding if a RP would have taken precautions. P may argue that

1. since D was in breach of law, it is likely that a RP would not have done what he/she did (Tucker v McCann).

   1. Breach of legislative standards is not conclusive of a breach, but is a factor to be weighed up among others (Tucker v McCann)[driving too quickly in breach of regulations not held negligent]

   2. Relevant considerations in determining the weight of the breach of legislation include:

      1. The nature of the precaution specified by the law

      2. The circumstances of the breach

Professional common practice

• Professional common practice under WA s 59 does not apply in ‘duty to warn’ situations: WA s 60.

D may argue that he/she is a professional and since… was common practice amongst his/her peers [industry/field] that his/her liability for negligence is completely excluded per WA s 59(1).

1. D must show he/she is a professional; that is, an individual practising a profession (WA s 57).

2. D must also show that (per WA s 59(1)) at the time D provided the service, a significant number of respected practitioners in the field accepted that the manner in which D acted was competent professional practice in the circumstances.

   1. Even if there are divergent opinions within Australia, D may rely on any one or more (or all) of these opinions, as long as it is accepted by a significant number of respected practitioners (WA s 59(3)).

   2. Peer professional opinion does not have to be universally accepted to be considered widely accepted (WA s 59(4)).

[Note whether, prima facie, D will be able to rely on common practice]

However, D may be unable to rely on peer professional opinion to avoid liability is the court determines that the opinion is unreasonable altogether (WA s 59(2)).

Non-professional common practice

D may argue that by… he/she was in conformity with common practice. If so, it is less likely a RP in D’s position would...