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Negligence Breach Of Duty Notes

Law Notes > Tort I (Intentional & Negligence) Notes

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Breach of Duty & Material Damages General To establish negligence, which is an action on the case, damages must be proved Civil Liability Act 2002 (NSW): s 5B(1)

* s 5B(1)(a): foreseeable = not far-fetched or fanciful: Wyong Shire Council v Shirt

* s 5B(1)(b): not insignificant: Paris v Stepney Borough Council; Rogers v Whitaker Civil Liability Act 2002 (NSW): s 5B(2) --- not an exhaustive test

* s 5B(2)(a): probability: Bolton v Stone;

* s 5B(2)(b): likely seriousness: Paris v Stepney Borough Council

* s 5B(2)(c): burden of taking precaution: RTA NSW v Dederer; The "Wagon Mound" (No 2)

* s 5B(2)(d): social utility: Romeo v Conservation Commission of the NT; Civil Liability Act 2002 (NSW): s 5C

* The extent to which the precaution should be taken only need to be compared with a similar risk.

* The plaintiff can avoid the risk by himself in doing the matter in a different way is not a defence.

* The late performance/precaution taken by the defendant is not a defence. Difference between "a duty of care" and "breach of duty". The former is a question of law, while the latter is a question of fact: Swain v Waverley Municipal Council Res ipsa loquitur is not a cause of action. It is concerned with negligence arising from an unknown or unspecified cause, therefore, it can only be used as a last resort indicate a breach: Schellenberg v Tunnel Holdings (2000) Inexperience Experience or skill is irrelevant to the judgement of a breach: Nettleship v Weston The plaintiff's knowledge as to the skill or experience of the driver is irrelevant to the judgement of damages: s141(1) MACA Mental Illness and Intoxication The defendant's mental condition had no effect on the standard of care owned by him to the plaintiff: Carrier v Bonham Intoxication: Civil Liability Act 2002 (NSW)

* s 49(1) whether a person is intoxicated or not is not relevant to the duty he owes to others, as well as the duty others owes to him Childhood Whether a child breaches his duty should be judged on whether an ordinary prudent and reasonable child at the same age in the defendant's situation would have done: McHale v Watson Professional Civil Liability Act 2002 (NSW): s 5O

* "widely accepted in Australia by peer professional opinion"

* Reintroduce the Bolam principle: Bolam v Friern Barnet Hospital Management Committee

* Add Courts' discretion Civil Liability Act 2002 (NSW): s 5P

* Mainly apply to doctor, dentist, nurses who can cause death or physical injury to the plaintiff

* Common Law case back up: Rogers v Whitaker Temporal Consideration The duties of care and their breach must be judged by reference of the knowledge at the time when the tortious behaviour committed: Roe v Minister of Health

Plaintiff needs to prove:

* there is a duty of care.

* the breach has in fact occurred, for example, i.e., to prove there are reasonable practical alternatives.

1. The plaintiff had been skiing in a circuit which was habitually used by water-skiers when he fell and struck his head on the bed of the lake, suffering quadriplegic paralysis.

2. The depth of the water in the lake at the point where he fell was only between three feet six inches and four feet, however, the four signs erected by the council carrying the word "Deep Water" adjacent to the place where the plaintiff fell.

3. In fact, the signs were used to refer to the channel nearby and the accident occurred in the vicinity of one of those signs.

4. The plaintiff maintained that he had been misled by the sign into thinking that the water in the area where he was skiing was deep. Foreseeability of the risk of injury cf. the Likelihood of that risk occurring, i.e., even low rate of occurrence, it might still be foreseeable, depending on the circumstances. s 5B(1)(a): the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), s 5B(2): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.

Standard of Care Assuming that the plaintiff has established that the defendant owed to him/her a duty of care the plaintiff must prove the defendant breached that duty, i.e, was negligent. Negligence is breach of a duty of care and consists of the defendant's failure to exercise the standard of care of the reasonable person in response to a reasonably foreseeable risk. Duty of care: a question of law; Breach of duty: a question of fact. Reasonable Person's Response to a Foreseeable Risk Wyong Shire Council v Shirt (1980) The breach of duty inquiry involves two stage,

* the first being whether a reasonable person in the defendant's position would have foreseen that his or her conduct involved a "not far-fetched or fanciful" risk of injury to a person in the plaintiff's position.

* If the answer is in the affirmative, the second stage is to determine what a reasonable person in the defendant's position would have done by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. In essence its correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the concept of foreseeability in connexion with the existence of the duty of care involving a more generalized enquiry. A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.

* A reasonable man might well have concluded that the sign was ambiguous and that it could be read as an indication that there was a zone of deep water beyond, rather than in front of the sign.

* A reasonable man might also have concluded that a waterskier, so reading the sign, might be induced to ski in that zone of water, mistakenly believing it to be deep.

* The possibility might also have occurred to a reasonable man that it would be unsafe for an inexperienced water-skier to ski in water having a depth of three feet six inches and no more.
He might well contemplate the possibility of a skier being projected into the water at a relatively high speed in consequence of a mishap and thereby sustaining injury in striking the bed of the lake.
Judgment for the plaintiff.

1. A person, being on a side road of a residential houses, was injured by a ball hit by a player on a cricket ground abutting on that highway.

2. The ground was enclosed on that side by a seven-feet fence, the top of which, owning to a slope, stood seventeen feet above the level of the pitch.

3. The wicket from which the ball was hit was about seventy-eight yards from this fence and 100 yards from the place where the injury occurred.

4. Evidence showed that while over a period of years balls had been struck over the fence on very rare occasions, the hit now in question was altogether exceptional.

Bolton v Stone [1951]
Although the possibility of the ball being hit on to the highway might reasonably have been foreseen, this was not sufficient to establish negligence, since the risk of injury to anyone in such a place was so remote that a reasonable person would not have anticipated it.

* The members of the club were not liable in damages to the injured person, whether on the ground of negligence or nuisance.

Case Law in accordance with s 5(B)

1. The respondents had two vessels undergoing repairs at a Mort wharf in Sydney Harbour.

2. The owners of the wharf in the course of doing the repairs were carrying out oxyacetylene welding and cutting, which frequently caused pieces of hot metal to fly off and fall into the sea.

3. The appellant was the charterer of a the "Wagon Mound", which had been taking bunkering oil from another nearby wharf.

4. Due to the negligence of its employee, a large quantity of oil overflowed from the "Wagon Mound" onto the surface of the water and accumulated around the former wharf and also the respondents' two vessels.

5. On November 1, 1951, the oil was alight. The fire spread rapidly and caused extensive damage to that wharf and to the respondents' two vessels. Barton v Stone considered Even the risk is small however, the consequence might be very great, and the effort to decrease the risk is not affordable, therefore the master should be responsible.

1. A workman employed as a garage hand had, to the knowledge of his employers, only one good eye.

2. In working on the back axle of a vehicle to remove a U-bolt, which had rusted in, he struck it with a hammer and a metal clip flew off seriously injuring his good eye.

3. He was not wearing goggle.

4. He claimed damage against his employers in respect of that injury on the ground that they were negligent in failing to provide and require the use of goggles as part of the system of work. The more serious the harm, the more care should be taken.

In Wyong Shire Council v Shirt, "foreseeable" means "not far-fetched or fenciful" Not an exhaustive test,Wyong Shire Council v Shirt Bolton v Stone Paris v Stepney Borough Council RTA NSW v Dederer; Romeo v Conservation Commission of the NT

The extent of the precaution that should be taken Not a defence to ask the plaintiff act in a different to avoid the risk Late action, no excuse

Overseas Tankship (UK) Limited v Miller Steamship Co Pty Ltd (The "Wagon Mound" (No 2)) [1967]
Where a duty of care is established, it is required to consider the surrounding circumstances, such as the expense that will be incurred to avoid the risk of harm, to decide whether there is a breach of that duty.

* On the facts, a reasonable man having the knowledge and experience to be expected of the appellant's chief engineer would have known that there was a real risk of the oil on the water catching fire and the fact that the risk was small did not in the circumstances justify no steps being taken to eliminate.

* As the elimination of this risk involved no difficulty, disadvantage or expense, the charterer of the "Wagon Mound" was liable for the damage to the plaintiff 's vessels. Paris v Stepney Borough Council [1951]
The employer is bound to take account of the known disabilities of the employee. Since that particular employee would, by reason of his disability run the risk of very serious injury, a prudent employer would provide him with special protection. In such questions of negligence the basis on which the duty is computed is foreseeability. "The seriousness of the injury risked" is set down as a factor to be taken into consideration as well as "the likelihood of the injury being in fact caused".

* In the case of a workman suffering, to the employer's knowledge, from a disability which, though it did not increase the risk of an accident occurring, did increase the risk of serious injury if an accident should befall him, the special risk of injury is a relevant consideration in determining the precautions which the employer should take in the fulfillment of the duty of care which he owes to the workman. Romeo v Conservation Commission of the Northern Territory (1998) RTA New South Wales v Dederer (2007) CIVIL LIABILITY ACT (2002) (NSW) PART 1A -- NEGLIGENCE Division 2 -- Duty of Care 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following: (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

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