Problem Question Flowchart - Tort Law

Duty of Care 2

Breach of Duty 2

Causation 3

Defenses 5

Damages 9

LAWS1061 Torts – Problem Question

• Established class of persons

• Was it reasonable foreseeable that this class of persons who is of normal fortitude may be harmed as a result of negligence?

• Identify relevant risk of harm and negligence

• What is the standard of care? Who is the reasonable person?

  • Children (McHale)

  • Mental Illness (Carrier)

  • Learners or extra skill (Imbree)

    • If special skill, a “reasonable person” with that special skill

    • “Reasonable person exercising a special skill”

      • Not necessarily a professional under s5O CLA

• Can D utilize CLA s5O and s5P? (The Boman Principle – Rogers)

  • Is the D a “professional” – s5O(1)

  • Is the D “providing services” – s5O(1)

  • Is the service/practice “widely accepted? – s5O(1)

  • Is this opinion “irrational”? – s5O(2)

  • Does not apply to duty to warn of risk of death or injury – s5P

• Is the reasonable foreseeability of the risk of injury is “not significant”?

  • “Not far fetched and fanciful” (Wyong v Shirt)

  • Risk is foreseeable (D knew or should have known) – s5B(1)(a); (chapman v Hearse)

  • Consider, would a reasonable person in D position have taken those precaution (Romeo v NTCC)

• Calculus of Negligence - s5B CLA (Some risks are worth taking)

  • A- Probability of harm if care is not taken (Romeo, Dederer, Bolton v Stone)

  • B -Likely seriousness of harm (Paris v Stepney)

  • C- Burden of taking precautions to minimize the harm (Woods)

  • D- Social utility of the activity that creates the risk of harm (E v Red Cross)

    • It is unlikely that social utility will be considered in determining breach

  • Balance A + B (probability of harm) with C+D (risk of seriousness of harm) against burden of completing a special skill – and among other things.

• The But-For Test

  • The negligence was a necessary condition for the occurrence of harm – factual test s5D(1)(a) AND

    • More probable than not that, but for D’s act, harm would not have occurred

    • May be liable for further injuries brought about due to original injury (Pyne v Wilkenfeld)

  • It is appropriate for the scope of the negligent person’s liability to extend to the harm so caused – scope of liability – legal causation s5D(1)(b)

    • Consider intervening acts and remoteness

  • EXCEPTIONAL CASE – if negligence can not be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation (the but-for test), then the courts must consider: whether or not and why responsibility for the harm should be placed on the negligent party:

    • On the balance of probabilities

      • Multiple cause or defendants (Amaca v Ellis)

      • Inconclusive evidence but negligence sufficiently increased the risk of harm (Strong v Woolworths)

  • If failure to warn of risk eventuates:

    • A causal connection will exist between the failure (to warn) and the injury if it is probable that the P would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved

      • No liability if it would have gone ahead anyway (Chappel v Hart)

    • Test is subjective - not what the reasonable person would have done- s5D(3)(a) (Rosenberg v Percival)

    • Any statement about what a person would have done after the harm is inadmissible, unless statement is against his or her interest - s5D(3)(b)

• Novus Actus Interveniens – Is there an intervening act?

  • Was there a reasonably foreseeable event in a situation of risk created by D? (Chapman; Mahony) [Is it the very kind of thing that would be expected from the decision?]

    • If yes, was the new act the “very kind of thing” that was likely to happen due to D’s negligence

      • If yes, there is no novus actus and D is liable for the consequences (March v Stanmore; Chapman v Hearse)

    • If no, likely novus actus and D is not responsible for damage resulting from new act

  • Was there a voluntary human act by P or 3^rd party? (Haber; Lothian; Caterson) OR

    • P’s act must be truly voluntary and not a consequence of the injury (Haber v Walker)

    • Deliberate act by 3^rd party, especially criminal act likely to bring Novus Actus (Adeels Palace; SRA v Chu)

      • Unless, the very thing that D had a duty of care to protect against (March v Stanmore)

  • Was there a causally independent event unconnected with the negligence (Haber)

    • D is not liable for a coincidence, as long as risk to P has not been increased by actions of D (March v Stanmore)

  • For medical negligence, provided P acts reasonably, medical negligence is not a Novus Actus unless it is ‘inexcusably bad’ or ‘so unnecessary or improper’ (Mahoney v Kruschich)

• Test of remoteness – the “reasonable foreseeability of risk” (Wagon Mound no.1)

  • Was the kind of damage reasonably foreseeable as a result of the breach? (Kavanagh; Nadar) [Kind = physical or mental]

    • Even if the extent of the injury is not RF consider egg shell skule rule (Stephenson; Nadar; Kavanagh)

      • The tortfeeser must return the P to how s/he found them

      • This is independent of whether the P had a different reaction to the reasonable person

    • As long as it is the kind of injury that is RF, the particular manner and extent of P’s injury does not need to be RF (Hughes v Lord Advocate; Jolley; Kavanah)

  • Consider if, values or policy based considerations might warrant/discount imposing responsibility for the harm caused – whether or not and why responsibility should be imposed upon the negligent party (s5D(4); Wallace v Kam) and whether it is appropriate to extend liability – s5D(1)(b)

    • S5D(1)(b) CLA “appropriate” + s5D(4) CLA “whether or not and why”

• Contributory negligence – (Incomplete defense – ameliorated by appropriate legislation – ie Law Reform (Miscellaneous Provisions) Act 1965 (NSW))

  • How much care would a reasonable person in the P’s positin have taken, and did the P take less care (Objective standard) – s5R CLA

    • No dispensation is made if the P was incapable of achieving the standard of the reasonable person, although age may be considered (Doubleday; McHale)

  • Was there a causal connection between he injury and the negligence (Froom)

  • Apportionment – if the P is found to have contributed to the negligence, the court may apportion dmaages in order to arrive at a just and equitable result

    • Did the P depart from the standard of a “reasonable person” (Pennington)

    • “Causal potency” – did the P contribute to the injury? (Podrebersek)

    • In NSW, damages recoverable by the plaintiff may be reduced by up to 100% - s5S CLA

• Voluntary assumption of risk (Complete Defence)

  • Obvious risk

    • Is it an obvious risk? – s5F

      • Obvious to a person in P’s position? – s5F(1)

      • Is it common knowledge? – s5F(2)

      • Irrelevant if low probability of harm or that risk is not prominent or physically observable – s5F(3-4)

      • If inherent risk, no duty arises – s5i

    • Under the common law

      • P subjectively knew and understood the risk?

      • Did P willingly and freely consent to the risk? (Joyce)

    • If it is obvious, a P is presumed to have been aware of the risk – s5G(1) – including anything within the type of kind of risk – s5G(2). Consider:

      • Were the acts that eventuated, what was expected form the obvious risk?

      • If waiver, was it specific enough to cover the harm that eventuated?

      • If no to either 1 or 2, unlikely that P consented to the specific risk and thus it was not obvious

  • Non-obvious risk

    • Did the P have knowledge of the “type or kind of risk” – s5G CLA +

    • Did the P consent to the “type of kind of risk”? (Joyce)

      • Must be expressed explicitly if the risk is not obvious to a reasonable person – waiver

• Dangerous recreational activity

  • Is it a recreational activity? – s5K

  • If yes, is it a dangerous recreational activity? – s5K

    • Is there a significant risk of physical harm?

  • If yes, D is not liable for harm suffered as a result of the materialisation of an obvious risk arising from a dangerous recreational activity (Falvo) – s5L; s5F

    • This applies whether or not the P was aware of the risk

    • If it is obvious, a P is presumed to have been aware of the risk (s5G(1)), including anything within the type or kind of risk – s5G(2)

      • Discuss wether or not it is an obvious risk

        • Obvious to a person in P’s position? – s5F(1)

        • Is it common knowledge? – s5F(2)

        • Irrelevant if low probability of harm or that risk is not prominent or physically observable – s5F(3-4)

• Waiver (Risk warning):

  • D does not owe a DoC to a P who has signed a risk warning – s5M. Unless;

    • P is incapable (young in age, disabled)

    • That harm occurred contravened a law that established specific practices related to personal safety – s5M(7)

    • D can not rely on s5M to the extent that the warning was contradicted by any representation as to risk made by on behalf of D – s5M(8)

  • Risk warning will not exclude liability on every case

    • EG where it is not sufficient or specific enough to he injury (Mikronic v Adams)

• Statutory Defence (Complete defence)

  • Was there materialisation of “obvious risk” while engaging in a dangerous recreational activity? – S5L, s5K, s5F (Fallas; Falvo; Vreman)

  • Requirements for breach of statutory duty

    • The plaintiff must show that:

      • Parliament intended to give a private right of action for damages for breach of a statutory duty imposed on the defendant

      • The defendant was in breach of that statutory duty

      • The plaintiff is within the class of persons protected by the statute

      • The injury or damage is within scope of statutory protection

      • The plaintiffs damage was caused by the breach

• Good Samaritans/ Volunteers

  • Someone who voluntarily assists someone in good faith in an...