Breach Of Duty - Torts Law

Class 8- Breach of duty:

• Assignment not about breach. Just Duty=

• Reasonable foresee-ability:

• D v S + Chapman + salient features

• Mental harm: CLA, T/A, Koehler.

• PEL: Helley Byrne + Essender + Perre.

• Occupier’s liability: Safeway + Moobury

• Specific definitions (public): Crimmins, Amaca, Barclay.

• Essay= 35%. To what extent (answer the question- to a significant extent). Don’t just agree with the statement and use the fact scenario in part one - 900 words on essay.

• 1600 words for the problem question.

• To establish a breach of duty, the plaintiff needs to prove that the defendant’s conduct fell bellow the required standard of care.

• The standard of care is determined by the actions or omissions of a notional reasonable person in the same circumstances as the defendant. To compare the defendant’s actions to that of a reasonable person involves consideration of the magnitude of risk, the probability of its occurrence, and the burden of taking precautions to avoid the risk.

• In Bankstown Foundry Pty Ltd v Braistina (1986) Dixon CJ and Kitto J reasoned that what reasonable care requires will vary with changing ideas of justice and increasing concern with safety in the community. It is influences by current community standards.

General principles for establishing a breach of duty:

• The common law test for breach of duty was laid down by Mason J in Wyong Shire Council v Shirt (1980). In deciding whether there has been a breach of duty of care, the tribunal of fact must ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff.

• The Civil Liability Act establishes a similar test to this in section 9. It says that the risk must be foreseeable (the person knew or ought to have reasonably known), the risk was not insignificant, in the circumstances, a reasonable person in the position of the person would have taken the precautions.

• Most case treat ‘insignificant’ to mean not farfetched.

Foresee-ability of harm:

• In Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd (1983) Glass J said, it must be proved that a means of obviating the possibility of damages was available and would have been adopted by a reasonable defendant.

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Wyong Shire Council v Shirt (1980)

Transformed into CLA section 5B (1 and 2) In deciding whether there has been a breach of duty of care, the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved risk of injury to the plaintiff........

Facts:

• Shirt became a quadriplegic after striking his head on the bottom of a lake while water skiing in a shallow part.

• The Council had dredged deeper channels alongside the jetty and had put a deep water sign on the jetty to warn of the deep water.

• Shirt claimed to be mislead into believing the lake was generally deep and safe for inexperienced skiers.

Remedy sought:

• Shirt wants damages for a breach of the duty of care.

Prior proceedings:

• Shirt won in the NSW Court of Appeal. The Council appealed to the High Court.

Legal issue:

• Can Shirt’s accident be reasonably foreseeable if there was low probability of the injury occurring?

Outcome:

• Appeal dismissed. Shirt won.

Legal reasoning:

• Mason J reasoned that a reasonable man would have concluded that the sign was ambiguous and that a water skier would have been induced to ski in that zone of water thinking it to be deep. The reasonable person would see it as unsafe for an inexperienced skier and may contemplate the skier striking the bed of the lake. There was foreseeable risk of injury.

Ratio decidendi:

• Foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. A risk may be foreseeable even if there is improbability of its occurrence, save where it is farfetched or fanciful.

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Doubleday v Kelly (2005)

Facts:

• The 7 year old Kelly was injured while she tried to roller skate on Doubleday’s trampoline while staying at their place. She broke her arm and back.

• She had been unsupervised because the rest of the family were asleep.

Remedy sought:

• Kelly wanted damages for a breach of the duty of care.

Prior proceedings:

• Kelly won in the District Court and Doubleday appealed to the Court of Appeal.

Legal issue:

• Was it reasonably foreseeable that a child would injure themselves after they were warned not to go on it unsupervised?

Outcome:

• Appeal dismissed. Kelly won.

Legal reasoning:

• Bryson JA reasoned that it was foreseeable that there was a risk of injury if the child was to use the trampoline without adult supervision and that risk was realised. Giving a warning the night before was not enough, the trampoline should have been folded up so no child could jump on it.

Ratio decidendi:

• A duty of care is not discharged when a warning is given to a child not to do something. More must be done to prevent the risk.

Responding to the foreseeable risk:

• Once the foreseeable risk is established, the court must determine what the response of a reasonable person to the risk would be in the circumstances. The court must take into account many factors called the calculus of negligence to determine what the reasonable person’s response should have been.

• The issue of breach must not be fanciful or farfetched or not insignificant risk. The reasonable person needs to balance the various considerations.

• In United States v Carrol Towing Co (1947) Hank J described the level of care expected as a function of the variables, the probability of the harm if care was not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm. This is incorporated into the Civil Liability Act under section 9(2). It also includes the social utility of the activity that creates the risk of harm. Sometimes more than one factor is emphasised but the question is always how would the reasonable person respond in the circumstances.

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Romeo v Conservation Commission (1998) – The court weighs up a range of different factors in order to determine whether the defendant has breached their duty of care. Has the defendant acted like a reasonable person in their position? What does it take to discharge a duty of care when it is a public authority.

Facts:

• Romeo was drunk and fell off a cliff.

Remedy sought:

• Romeo wanted damages for a breach of care.

Prior proceedings:

• Romeo lost in the Supreme Court of the Northern Territory and appealed to the High Court.

Legal issue:

• Has the Commission breached their duty of care?

Outcome:

• Appeal dismissed. Romeo lost.

Legal reasoning:

• Kirby J reasoned that courts have the responsibility to introduce sensible and practical notions of reasonableness which will put a brake on more extreme and unrealistic claims. The risk in this case was obvious and the suggestion that the cliffs should have been fenced is not reasonable. The perceived magnitude of the risk, the remote possibility that an accident would occur, the expense, the difficulty and inconvenience alleviating conduct and the proper priorities of the Commission confirm that there was no breach in the duty of care.

• Expenses of taking alleviating action. Hand formula- utilitarian reasoning (Wright)

• Difficulty of alleviating person’s conduct.

• McHugh J dissented. He reasoned that the Commission had to consider the magnitude of risk. In this case there was a grave risk of injury. They had to consider the probability of the risk occurring. It was low because no previous accident had ever been reported but it was not negligible. The fall was reasonably foreseeable and the Commission was bound to put a fence up. They did not have to put a barrier along the whole 8km. The barrier was needed at this spot because it was near a car park and a fall was more likely to occur. Once tey see there is a risk they must take steps to eliminate it.

• Hayne J reasoned that what is reasonable must be judged in the light of all the circumstances. There are many factors and they must be judged in all the circumstances of the case.

Ratio decidendi:

• The question of what is reasonable includes many factors which must be answered in light of the circumstances of the case. Such factors include the magnitude of the risk and the probability of the risk occurring.

• The duty of care of a public authority will be judged differently because they cannot control all the risks like a private owner may. Resources available are limited and the allocation of them is a concern for bodies accorded with the function of law.

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Vairy v Wyong Shire Council (2005)

Facts:

• Vairy suffered serious injury after diving into water and striking his head on the sand bellow.

• He argued that the Council should have given warning about the risk.

• A similar serious accident had occurred 15 years earlier at the same place to the Council’s knowledge.

Remedy sought:

• Vairy wanted damages for breach of duty.

Prior proceedings:

• Vairy won but appealed to get more damages in the NSW Court of Appeal and lost. Vairy appealed to the High Court.

Legal issue:

• Should there have been a sign erected prohibiting diving?

• Would a reasonable person from the council have foreseen that his conduct involved a risk of injury to the class of persons including Vairy?

• Is it reasonably foreseeable because a man had the same injury 15 years ago?

Outcome:

• Appeal dismissed 4:3. Gleeson CJ, Kirby and McHugh J dissented. Council won.

Legal reasoning:

• Hayne J reasoned that...