JURD7161/LAWS1061 Torts

Transcription

1 JURD7161/LAWS1061 Torts 1

2 BREACH... 5 STANDARD OF CARE... 5 General... 5 Age/Children... 5 Mental illness/disability... 5 Knowledge/Skill... 5 Professionals... 5 Failure to Warn... 5 REASONABLE FORESEEABILITY + NOT INSIGNIFICANT... 6 Test... 6 Reasonable foreseeability... 6 Not insignificant... 6 CALCULUS OF NEGLIGENCE... 6 Test... 6 Probability of harm... 6 Gravity of likely seriousness of the harm... 6 Burden of taking precautions... 6 Social utility... 7 CASES... 7 Standard of care... 7 McHale v Watson (1966)... 7 Carrier v Bonham (2001)... 7 Imbree McNeilly (2008)... 7 Rogers v Whittaker(1992)... 7 Reasonable foreseeability/not insignificant... 8 Doubleday v Kelly (2005)... 8 Wyong v Shirt (1980)... 8 Calculus... 8 Bolton v Stone (1951)... 8 Rta v Dederer (2007)... 9 Parisv Stepney Borough (1951)... 9 Woods v Multi Sport Holdings (2002)... 9 LEGISLATION B General principles O Standard of care for professionals P Division does not apply to duty to warn of risk CAUSATION LEGISLATION ELEMENTS LIMITATIONS Novus actus interveniens Multiple Successive Causes Exceptional cases FAILURE TO WARN CASES But for test March v Stramare 1991 HCA Amaca v Ellis 2010 HCA Adeels Palace v Moubarak 2009 HCA Strong v Woolworths 2012 HCA Novus actus interveniens Chapman v Hearse 1961 HCA Haber v Walker [1963] VR Mahoney v Kruschich Demolitions 1985 HCA Caterson v Commissioner for Railways 1973 HC Haynes v G Horwood & Sons Multiple Successive Causes Baker v Willoughby Jobling v Associated Dairies (1982) REMOTENESS ELEMENTS Eggshell Skull CASES

3 The Wagon Mound (No 1) (1961) The Wagon Mound (No 2) (1967) Hughes v Lord Advocate Jolley v Sutton LBC Stephenson v Waite Tileman Smith v Leech Brain & Co Ltd Nader v Urban Transit Authority of NSW Kavanagh v Akhtar CONCURRENT LIABILITY VICARIOUS LIABILITY ELEMENTS Employee/Independent Contractor Acting in the course of employment LEGISLATION CASES Hollis v Vabu (2001) NSWCA>HCA Sweeney v Boylan Nominees (2006) NSW v Lepore (2003) HCA NON-DELEGABLE DUTY PRINCIPLES ELEMENTS Dangerous activity or substance LEGISLATION CASES Burnie Port Authority v General Jones P/L (1994) HCA TORT OF BREACH OF STATUTORY DUTY ELEMENTS CASES A. Right to sue O Connor v SP Bray Ltd (1937) 56 CLR Cutler v Wandsworth Stadium Ltd [1949] AC Byrne v Australian Airlines Ltd (1995) 185 CLR B Class of persons Read v Croydon Corporation (1938) 55 TLR Pask v Owen [1987] 2 Qd C Preventing kind of harm suffered Gorris v Scott (1874) LR 9 Ex Mummery v Irvings (1956) 98 CLR D Legislative duty imposed on defendant Darling Island Stevedoring and Lighterage Co Ltd v Long (1957) 97 CLR E Statute must be breached Galashiels Gas Co Ltd v O Donnell [1949] AC F Breach must cause the injury John Pfeiffer Ltd v Canny (1981) 148 CLR DEFENCES TO NEGLIGENCE CONTRIBUTORY NEGLIGENCE PRINCIPLES ELEMENTS Reasonable Person Standard of care Causal Connection APPORTIONMENT EXAMPLES OF CONTRIBUTORY NEGLIGENCE CASES Standard of care Caterson v Cmsr for Railways (1973) Avram v Gusakoski (2006) Taheer v Aus Associated Motor Insurers (1948) Casual Connection Jones v Livox Quarries (1952)

4 Pennington v Norris (1956) INTOXICATION ELEMENTS VOLUNTARY ASSUMPTION OF RISK ELEMENTS Knowledge Voluntariness EXAMPLES OF OBVIOUS RISKS DANGEROUS RECREATIONAL ACTIVITIES ELEMENTS Dangerous recreational activity Obvious Risk CASES Fallas v Mourlas (2006) Laoulach v Ibrahim (2011) DAMAGES- ECONOMIC LOSS DATE OF ASSESSMENT RECOVERABLE HEADS OF LOSS DAMAGES FOR ECONOMIC LOSS Past out of pocket expenses (medical) Past loss of earnings Future loss of earnings Gratuitous care Loss of Capacity to Provide Domestic Services to Others Discount CASES Loss of earning capacity Malec v JC Hutton Pty Ltd Wynn v NSW Insurance Ministerial Corp DAMAGES- NON-ECONOMIC LOSS RECOVERY Non-economic loss CASES Skelton v Collins Sharman v Evans Woolworths v Lawlor

5 Breach To establish the tort of negligence, P needs to show that D failed to meet the required standard of care that they owed to the P. In order to determine this, it is necessary to ascertain the relevant standard of care, whether the risk of injury to the P was reasonably foreseeable and whether D s response to that risk was reasonable in the circumstances. Standard of care General Except in particular circumstances, the standard of care expected of the defendant is that of the reasonable person : Glasgow v Muir (1943) Age/Children Age can be taken into consideration when establishing the standard of a reasonable person: McHale v Watson (1966) o A child is only expected to conform to the objective standard expected for children of similar age and experience: McHale v Watson (1966) Mental illness/disability The reasonable person test does not require consideration for a person s disabilities: Carrier v Bonham (2001) o Unsoundness of mind is not a normal condition in most people, and it is not a stage of development through which all humanity is destined to pass it would be impossible to devise a standard by which the tortious liability of such persons could be judged as a class. Knowledge/Skill Lack of knowledge or skill cannot be taken into consideration in the reasonable person test: Imbree McNeilly (2008) Professionals The standard of care for a professional in the provision of professional services is that they act in a manner which is widely accepted in Australia by peer professional opinion as competent professional practice: s5o(1) CLA o However, peer professional opinion will not be relied on if it can be considered irrational: s5o(2) o Widely accepted universally accepted: s5o(4) CLA o Varying opinions can be relied upon: s5o(3) CLA Test o Is the person a professional? o Is the person providing services? o Is the manner in which the professional was acting widely accepted? o Is the opinion irrational? Failure to Warn The standard of care of a doctor in providing advice and information expects that the doctor will warn his patients of material risks associated with the provision of their treatment (service): Rogers v Whitaker (1992); s5p CLA o A risk will be material if a reasonable person in the patient s position, if warned of the risk would be likely to attach significance to it, or if the medical practitioner is or should reasonable be aware that the particular patient, if warned of the risk, would be likely to attach significance to it: Rogers v Whitaker (1992) 5

6 Reasonable foreseeability + Not insignificant Test D cannot be said to have breached the standard of care if the risk was not foreseeable, not insignificant and they took the same precautions as a reasonable person in their position: s5b(1)(a). Reasonable Forseeability As such, it is necessary to determine whether or not the relevant risk of harm was foreseeable: s5b(1)(a) This assessment must be made prospectively: RTA v Dederer (2007) Reasonable foreseeability Harm Harm is defined as harm of any kind including personal injury or death, damage to property and economic loss : s5 CLA. The relevant harm in this case is.which accords with this definition. Foresight The relevant consideration is whether the person themselves knew, or a reasonable person in their position ought to have known of the risk of harm: s5b(1)(a) CLA Particular or special knowledge on the part of the D may be relevant to the foreseeability of the harm: Paris v Stepney Borough Council (1951) o In this case the D knew of the P s particular vulnerability to blindness because he was already blind in one eye Not insignificant A risk has held to be not insignificant where it is not far-fetched or fanciful : Doubleday v Kelly (2005) or at most a slightly more demanding standard than this: Shaw v Thomas Calculus of negligence Test Once the court has determined that the risk is foreseeability and it is not insignificant, it is necessary to determine whether the reasonable person in the D s position would have taken precautions against the risk of harm: s5b(1)(c) It is necessary to undertake a contextual and balanced assessment of the reasonable response to a foreseeable risk and in doing so consider: s5b(2); RTA v Dederer (2007) o Probability of harm o Likely seriousness of the harm o Burden of taking precautions o Social utility Probability of harm Obviousness of the risk may be relevant to the probability that harm will occur: Nagle v Rottnest (1993) If the probability of the risk occurring is small it may be justifiable not to take steps to eliminate it: Wagon Mound (No 2) Where it is common for people to engage in risky behavior without any harm eventuating, the probability of that harm occurring is therefore quite low: RTA v Dederer (2007) Gravity of likely seriousness of the harm Where the likely seriousness of an injury is the same for all, the standard of reasonable care is the same for all. However, where the seriousness of potential consequences is greater for one person because of some particular vulnerability, and the D knows of that vulnerability, this elevates the level of care required by the D: Paris v Stepney Borough Council (1951) Burden of taking precautions To determine what precautions the reasonable person would have taken, the court balances the gravity and probability of harm against the burden of taking precautions: Woods v Multi Sport Holdings (2002) 6

7 Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into the relationship may be significant: Woods v Multi Sport Holdings (2002) The D may not be required to take precautions where relevant equipment/materials for taking such precautions are not readily available or such precautions are not conventionally put in place: Woods v Multi Sport Holdings (2002) Social utility Where the burden of taking precautions is greater than a potential detriment to society, or will decrease a potential benefit to society, it may be reasonable that the D had not taken such precautions: E v Aus Red Cross (1991) Cases Standard of care McHale v Watson (1966) Children A 12 year old boy threw a piece of steel, about 15cm long and sharpened at one end, at a wooden post forming a guard around a tree The P was standing near the D and was hit in the eye when the steel either missed or glanced off the tree She was blinded The court held that it could not disregard the fact that the boy was 12 years old at the time of the accident and that the boy s behavior was to be judged according to the standard of another 12 year old boy Carrier v Bonham (2001) The defendant tried to comit suicide by throwing himself under a bus causing psychological harm to the bus driver The court found that the defendant would not have had any concept that his actions might cause harm to anyone else The court applied an objective test to the conduct of the D The reasonable person test does not require consideration of a person s disabilities Imbree McNeilly (2008) The appellant was severely injured when he let the respondent, aged 16 drive a four-wheel drive in the Northern Territory. The appellant knew the respondent didn t have a learner s permit at the time. Knowledge of inexperience cannot provide a sufficient foundation for applying different standards of care If any consideration for the respondent s inexperience was made, it came at the stage of damages where there was a 30% reduction for the appellant s contributory negligence Rogers v Whittaker(1992) Appellant was an ophthalmic surgeon and the respondent his patient who became almost totally blind after he operated on her right eye. The possible negligence he committed was not in the procedure itself, but in the failure to warn the respondent of a 1/14,000 chance of a rare complication which would blind her good eye. 7

8 o According to the trial judge the respondent had been relentless in questioning the appellant of possible complications, including accidental interference with her good eye. It would be reasonable for a person with one good eye to be concerned about the possibility of injury to it from a procedure which was elective. The standard of care is that of an ordinary person exercising and professing to have a special skill (in this case an ophthalmic surgeon). The fact that the respondent consistently questioned the appellant meant that the respondent placed significance to the risk to her good eye. This questioning required a truthful answer. Appeal dismissed. Reasonable foreseeability/not insignificant Doubleday v Kelly (2005) Seven year old was injured when she attempted to roller skate on a trampoline whilst at the defendant s house. She rolled backwards and fell off, breaking her arm. o The plaintiff was unsupervised as she played with the defendant s four year old daughter early in the morning. The use of roller skates is really a bizarre distraction to what is important in relation to breach. The more general question to be asked is whether there was a foreseeable risk of injury if the plaintiff/respondent were to use the trampoline at all without adult supervision. The trial judge s decision for the plaintiff/respondent is correct. Appeal dismissed. Wyong v Shirt (1980) Plaintiff became a quadriplegic when his head hit the bottom of a lake whilst water skiing. The water was 3 ft 6 inches to 4 ft deep. The lake had been used for skiing for quite some time despite shallowness. o Prior to the accident, the council had dredged deeper channels along a jetty to provide access for power boats involved in skiing along deeper parts of the lake. o Plaintiff argued he was misled into believing the lake was generally deep and safe for inexperienced skiers by a Deep Water sign erected by the council nearby. A risk of injury may be foreseeable even though unlikely to occur. All we are asking is was the risk not one which was far-fetched or fanciful? A reasonable man might have concluded that a water skier reading the sign might be induced to ski in that zone of water, mistakenly believing it to be deep. Appeal dismissed Calculus Probability of harm Bolton v Stone (1951) A woman was struck on the head whilst standing outside her house, across the road from a cricket ground, by a cricket ball that had been hit for six The ground had been in use since 1864, and the road was separated from the ground by a 17ft fence. Balls had occasionally been hit out of the ground on previous occasions No negligence, in favour of defendant 8