Breach Of Duty Notes

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...

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