matter of fact A Breach of Duty: Identify the Risks

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1 Table of Contents Breach of Duty:... 2 Inherent Risk... 4 Obvious Risk... 4 Causation... 4 Remoteness... 6 Defences to Negligence... 6 Volens Contributory negligence Unlawful conduct Statute of Limitation Dangerous Recreational Activity... 9 Vicarious Liability Non-Delegable Duty Proportionate Liability Damages

2 o The legal burden of proving negligence always rests with the plaintiff, on the balance of probabilities [CLA s 5E] o Whether the standard has been breached is a matter of fact for the tribunal of fact (jury or judge without jury) A Breach of Duty: Identify the Risks CLA s 5B(1): 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 o In the context of CLA, a risk is foreseeable if it is a risk which the defendant either knew or ought to have known This objective test sets a Standard of Care: who is a reasonable person? o Age children McHale v Watson (boy throws metal hits girl s eye) Standard was that of a 12 year old boy o Mental Illness and disability Carrier v Bonham (psychiatric patient walked in front of bus) defendant s mental condition had no effect on the standard of care owed by him to the plaintiff and must be judged by the standard of ordinary and reasonable person. o Lack of Skill Learners Imbree v McNeilly (inexperienced, unlicensed 16 yo drove 4WD station wagon) Standard of care is objective standard of an ordinary driver o Professionals/ Special Skill [CLA s 50] Rogers v Whitaker (ophthalmic surgeon blinded patient in the good eye after operating on the other) standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill The Bolam principle (Sidaway v Governors of Bethlem Royal Hospital) ú Law imposes the duty of care: but the standard of care is a matter of medical judgment This standard is applied to architects, solicitors, accountants and insurance brokers (cases found on p. 453) Risk was not insignificant o Not far-fetched or fanciful (Wyong Shire v Shirt) o not insignificant à CLA s 5B(1)(b) The Wagon Mound (No 2): even if foreseeable risk is insubstantial (small) the defendant will be held negligent if, but only if, the risk was real rather than 2

3 farfetched or fantastic and the defendant had no valid reason for failing to take steps to eliminate it Whether defendant did what a reasonable person would do in the position? (Answer this question by applying the Calculus of Negligence Romeo & CLA s 5B(2) must not be applied retrospectively (Vairy)) o Perception of a reasonable man s response calls for a consideration of: Gravity of resulting injury (Paris v Stepney) Degree of probability of its occurrence (RTA signs on bridge/ Romeo (cliff)/ Bolton v Stone foreseeable, not probable) Burden of taking adequate precautions (Woods cricket / Neindorf (uneven driveway)) ú expense, difficulty and inconvenience of taking alleviating action Social utility of the activity that creates a risk of harm (E v Red Cross) Any conflicting responsibilities which the defendant may have Identify possible precautions which could have been taken in response to each of the risk If no, a breach of duty is established. 3

4 The concept of inherent and obvious risk will trigger reduce standard of care: Inherent Risk Defendant not liable for materialization of an inherent risk unless there is a duty to warn of that risk (CLA: s 5I(1)) Inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill (NSW: CLA s 5I(2) & Rootes v Shelton (1967) (water skiing has inherent risk)) By exposing oneself to a condition or activity involving an inherent danger one has whereby become subject to the possibility of the danger crystallizing Mulligan v Coffs Harbour CC (2005) inherent risk does not change even if warning occurs (cf. E v Red Cross) Neinford v Junkovic (Kirby) although risk was obvious, the invitation onto the premises knowing the presence of danger constitutes a breach of duty as the appellant did not take reasonable precaution in preventing harm Obvious Risk Definition of Obvious risk (CLA s 5F) There is no duty to warn of obvious risk (CLA s 5H) Injured person presumed to be aware of obvious risk unless the plaintiff proves otherwise on the balance of probabilities (CLA s 5G) No liability arise for the materialisation of an obvious risk arising from a dangerous recreational activity (NSW CLA s 5F) [SEE DEFENCES] This is confined to negligence, so does not prevent liability arising, for example, from breach of statutory duty. Relevant to: Breach (although not stated in CLA) Contributory negligence DRA Defence of volenti non fit injuria (voluntary assumption of risk) Causation To determine whether causation exists, we must consider each of the risk from the breach But for the presence of the risk which was not mitigated because of the breach of duty, an injury would not have occurred but for the presence of the risks A. But for test: CLA 5D(1)(a) (factual causation) a. The harm would not have occurred but for the defendant s negligence (does not need to be sole cause) 4

5 B. Tempered by common sense (multiple sufficient cause/ successive causes NSW: s 5D(2) involves making value judgments and policy considerations) a. March v E & M Stramare Ltd (1991) (Mason J): causation should be considered from common sense so that values or policies do not have to be considered b. Baker v Willoughby (successive causes: leg injured, later amputated) i. Amputation did not decrease suffering: first tortfeasor still liable for damage to leg in accident c. Jobling v Associated Dairies (successive causes: leg amputated) OVERTURNS BAKER i. ordinary vicissitudes of life such as illnesses should be contemplated upon determining damages d. CLA 5D(2): whether or why i. Failure to warn CLA s 5D(3) (risk eventuated and caused physical harm) a. (a) Subjective test (Rosenberg) AND b. Pro-spective test C. Novus actus interveniens a. A wrongful act/omission cannot be held to have been as a cause of subsequent harm unless that harm would not have occurred but for the wrongful act NO Novus actus interveniens: b. Chapman v Hearse (1961) i. defendant s wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff and that injury occurs in the ordinary course of things c. Haber v Walker (husband suicide after accident, wife v driver) To sever the causal connexion and establish that a novus actus interveniens occurred, the intervening act must be: a. A voluntary act (not suicide, result of depression) b. A casually independent event along with the wrongful act/omission that is not extremely unlikely to be called a coincidence (If the wrongdoer can realise that the intervening act might occur, then it was not unlikely to be a coincidence à not a fully voluntary act à not a novus actus) Mahony v Kruschich Demolitions (1985) Negligence in the administration of the treatment is not a novus actus Possible Conclusion: Respondent s negligence is a continuing cause of accident. The chain of causation was not broken by a novus actus, nor was it terminated because the risk of injury was plainly foreseeable 5