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Problem Question Flowchart Notes

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This is an extract of our Problem Question Flowchart document, which we sell as part of our Tort Law Notes collection written by the top tier of University Of New South Wales students.

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Table of Contents

Duty of Care 2

Breach of Duty 2

Causation 3

Defenses 5

Damages 9

LAWS1061 Torts – Problem Question

Duty of Care

  • 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?

Breach of Duty

  • 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 3rd 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 3rd 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...

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