#6923 - Torts B Summary Breach Of Duty - Torts Law

Breach of Duty

1. What is the issue? What is the standard of care and did the D breach it?

2. Who is the RP?

   1. Section 48 (1) A person is not negligent in failing to take precautions against a risk of harm unless (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions

   2. Who is the reasonable person?

      1. It is an objective test and is that of a person of “ordinary prudence” Vaughan v Menlove

      2. Things that will affect the standard of care:

         • Minority: A child will be held to the standard of care of an ordinary child of comparable age

           • It is not an idiosyncrasy it is a normal stage of development Kitto J Mchale v Watson

           • The particular child’s intelligence probably do not modify the standard

           • Did the child exercise the care reasonably to be expected of an ordinary child of the same age, intelligence and experience McHale v Watson, supported in Ryan v State Rail Authority of NSW

         • Mental infirmities DON’T

           • Standard of care is assessed objectively disregarding any mental incapacity short of automatism Roberts v Ramsbottom

           • A D with a mental impairment – which may reduce their cognitive and foresight capacities – will still be held to the standard of a reasonable mentally competent person Carrier v Bonham

         • Physical Disabilities LIMITED

           • Where a man has a distinct defect of such a nature that all can recognise it as making certain precautions impossible, he will not be held answerable for not taking them Holmes, the Common Law

           • If a person is aware of their symptoms and still continues and then injures the P, they will be held liable Roberts

         • Intelligence DOES NOT

           • A person whose reactions are slower than average is not excused

           • Similarly, a person whose intelligence is superior than average is not liable for failing to use those qualities

         • Knowledge

           • Memory and experience

             1. One is deemed to know what the reasonable person would have learnt from experience

             2. One is deemed to know those things which adults are expected to know eg. law of gravity

             3. Where the status of the person is relevant then the standard is that of a person in that position Wagon Mound

           • Knowledge of the facts and surrounding circumstances

             1. Actual knowledge of the circumstances on the part of D increases the standard of care imposed Brooks v LNW Ry Co

             2. The court expect specialists to keep abreast of advances in medicine, technology

         • Inexperience NOT RELEVANT

           • If you are inexperienced, you are held to the standard of a person who is experienced Imbree v McNeilly

         • Skill: If you have a special skill, you are held to the standard of peers with the same skills. Eg. if you are a doctor with 1 year experience, you are held to the one standard of all doctors SEE COMMON PRACTICE

           • Section 58 (a)what could reasonably be expected of a person possessing that skill; and (b)the relevant circumstances as at the date of the alleged negligence and not a later date.

             1. Profession will be relevant Phillips v Williams

           • Section 59 (professionals): (1)A professional is not negligent in providing 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 a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

             1. (2)However, peer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

             2. (3)The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

             3. (4)Peer professional opinion does not have to be universally accepted to be considered widely accepted.

         • Time of the assessment

           • The standard of the reasonable person is assessed according to knowledge at the date of the alleged negligence and not at the date of judgment Roe v Minister for health

           • Section 58 (b)the relevant circumstances as at the date of the alleged negligence and not a later date.

3. Apply the RF and Not-insignificant test

   1. Apply the reasonable foreseeability test. THIS TAKES INTO ACCOUNT SUBJECTIVE AND OBJECTIVE

      1. Section 48 (1) A person is not negligent in failing to take precautions against a risk of harm unless (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known) CAN TALK ABOUT REASONABLE PERSON HERE

      2. Question is, was it reasonably foreseeable that the kind of carelessness SPECIFIC (conduct) charged against the D might cause damage of some kind BROAD to the P’s person or property, or to a class of persons to which the P belongs LOOKING AT WHAT A RP WOULD FORESEE IN LIGHT OF SKILLS ETC AND THE KNOWLEDGE OF THE D Wyong Shire Council v Shirt

   2. Apply the ‘not insignificant’ test

      1. Section 48 (1) A person is not negligent in failing to take precautions against a risk of harm unless (b) the risk was not insignificant

      2. Section 48 (3): For the purposes of subsection (1) (b) – insignificant risks include, but are not limited to, risks that are farfetched or fanciful; and risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks

      3. How do we judge significance?

         • Amount of harm

         • Likelihood of harm

4. Would the reasonable person in the person’s position have taken those precautions?

   1. Section 48 (1) A person is not negligent in failing to take precautions against a risk of harm unless (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions

   2. Apply the negligence calculus

      1. The question is: what does the ‘reasonable person’ do in light of a foreseeable and not insignificant risk

      2. Section 49: the burden of a precaution is determined in light of the burden of avoiding similarly placed risks. The fact that harm could be avoided by doing something differently does not of itself evidence a breach. Subsequent taking of precautionary action does not of itself evidence breach

      3. Section 14G:Relevance of P’s illegality or voluntary intoxication relevant to determining breach

      4. Section 48(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):

         • (a) the probability that the harm would occur if care were not taken

           • The greater the probability of harm occurring, the greater the degree of care a reasonable person would take Bolton v Stone, Romeo v Conservation Commission of the NT

         • (b) the likely seriousness of the harm and the risk of serious injury

           • The D’s knowledge with respect to any particular susceptibility of the P to harm will be taken into account

             1. Note: s 48(1) (a) “ ... according to what the D knew or ought to have known” (c ) “ ... a reasonable person in the person's position would have taken those precautions”

             2. The known circumstances that a particular person is likely to suffer a greater injury must be taken into consideration in assessing D’s obligation Paris v Stepney Borough Council

         • (c) the burden of taking precautions to avoid the risk of harm

           • The greater the burden involved in taking the relevant precautions, the less likely it is that the treasonable person would have taken such precautions. According to Wyong, such onerous actions can only be taken if the risk is so likely to justify it Graham Barkley Oysters

         • (d) The social utility of the activity that creates the risk of harm.

           • The greater the public benefit flowing from D’s general activity, the less likely that a reasonable person would have taken precautions that would undermine that public benefit Watt v Hertfordshire County Council (here it was an emergency, not a commercial enterprise)

5. What is the standard of care? CONCLUDE: WHAT WOULD THE RP HAVE DONE?

6. What did the D do and did it breach the standard of care?

   1. What did they specifically do and does it constitute a breach?

OTHER FACTORS

2. Legislative Standards

   1. Breach of legislative standards is not of itself conclusive of a breach of a duty of care. It is only so far as the breach of the regulations throws any light upon the fulfilment of a duty Tucker v McCann

3. Common practice

   1. S 59(1): A professional is not negligent in providing 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 a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances.

   2. Who is a professional? S 57 A professional means an individual practising a profession.

   3. Diverging Opinions S 59(3) The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

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

   5. S 59(2) [P]eer professional opinion cannot be relied on for the purposes of this section if the court determines that the opinion is unreasonable.

   6. S 60 Section 59 does not apply to a liability arising in connection with the giving (or the failure to give) a warning or other information in respect of a risk or other matter to a person if the...