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Problem Question Flowchart Notes

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LAWS1061 Torts - Problem Question

Table of Contents





9 1 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"
o Not necessarily a professional under s5O CLA

o 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

o 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

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

2 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)
o Inconclusive evidence but negligence sufficiently increased the risk of harm (Strong v Woolworths)


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