Establishing the standard of care against which the D will be assessed;

Transcription

1 Breach f Duty The task f determining whether a duty f care has been breached invlves a cmparisn f the defendant s cnduct with the standard f care required by the duty. Whenever the defendant s cnduct falls belw the required standard f care, the duty is seen t be breached. Cnversely, when the defendant s cnduct meets r exceeds the standard impsed by law, n liability arises under the trt f negligence, irrespective f the existence f harm caused t the plaintiff. Thus, in deciding whether a duty f care has been breached, it is first necessary t ascertain the cntent f the duty (assuming, f curse, the existence f a duty f care has already been established) In Victria we nw lk at legislatin as ppsed t Wyng. There s n unifrm apprach since refrms were implemented. In Victria, the refrms were implemented in the Wrngs Act What is Negligent cnduct? The nature f the inquiry at the breach stage is t determine whether, by what the D has specifically dne r nt dne, the D has behaved sufficiently carelessly such as t cnstitute negligence at law. Bradly this invlves a tw-fld task: Establishing the standard f care against which the D will be assessed; Determining whether, by what the D has dne r nt dne, the D meets r falls shrt f the expected standard f care. The Wrngs Act plays a significant rle There are n degrees f breach Past findings f a breach are nly guiding and nt binding upn later cases: Qualcast (Wlverhamptn) Ltd v Haynes 1959 This is because determining whether specific cnduct falls shrt f the standard f care is a questin f fact determined in light f the particular details f each case; There are infinite variatins n any given scenari that may warrant a different finding n breach even in prima facie similar situatins

2 The reasnable persn 48. General principles (1) A persn is nt negligent in failing t take precautins against a risk f harm unless- (a) the risk was freseeable (that is, it is a risk f which the persn knew r ught t have knwn); and (b) the risk was nt insignificant; and (c) in the circumstances, a reasnable persn in the persn's psitin wuld have taken thse precautins. Negligence is the missin t d smething which a reasnable man, guided upn thse cnsideratins which rdinarily regulate the cnduct f human affairs, wuld d, r ding smething which a prudent and reasnable man wuld nt d Blyth v Birmingham Waterwrks C The legal standard is nt that f the defendant but that f a persn f rdinary prudence Vaughan v Menlve 1837 The standard f fresight f the reasnable man eliminates the persnal equatin and is independent f the idisyncrasies f the particular persn whse cnduct is in questin Glasgw Crpratins v Muir 1943 Is the standard bjective r subjective? The definitin f the reasnable persn is nt cmplete unless the wrds in the circumstances are embdied. These wrds may prevent the test frm being whlly bjective, fr the bundary between the external facts and the quality f the actr is ill defined. There is a danger that reasnable persn will simply perate as a clak f bjectivity and that all persns will cntinue t be judged by masculine standards rather than by a gender neutral cncept. Minrity There is n rule f law that wuld preclude a child f any particular age frm being capable f such negligence, althugh it wuld be prper t assume that a very yung child is incapable f taking care f itself unless there is evidence that the particular plaintiff was capable f ding s Crnan v Hepburn 1958 Age is a relevant cnsideratin, and minrs have been held nt guilty f cntributry negligence where adult, wuld, n similar facts, have been deemed t be s. The questin is: what degree f care fr their wn safety can be expected f minrs f that particular age and experience

3 McHale v Watsn The defendant was 12 years ld and the claim was dismissed, hlding that he culd nt reasnably be expected t shw the same degree f fresights and appreciatin f the risk that might have been required frm an adult A child will be held t the standard f care f an rdinary child f cmparable age Childhd is nt an idisyncrasy but a nrmal stage f develpment. The defence f childhd is therefre nt persnal t the defendant; it is rather t be seen as characteristic f humanity at the defendant s stage f develpment and in that sense nrmal Kitt J It is pen as t whether the particular child s intelligence and experience further mdifies the standard, but the better view is that it des nt. McHale v Watsn have adpted an apprach which entails asking whether the defendant had exercised the care reasnably t be expected f an rdinary child f the same age, intelligence and experience. This was supprted in Ryan v State Rail Authrity f NSW Old age; physical and mental infirmities It is unclear t what extent the standard f a reasnable persn will be adjusted by the curts t allw fr the incapacities and infirmities f individual adults. Mental Infirmities In Australia, even thugh there is little judicial authrity, it suggests that insanity is nt a defence and that insane persns shuld bear respnsibility fr damage caused by their trtius acts f the basis that, where ne f tw inncent persns must bear a lss, the lss shuld fall n the actr Hwever, any bservable mental r physical deficient f the plaintiff may, additinally, be a material factr in determining whether the defendant was negligent. The driver f a car will nt be at fault because a pedestrian, suffering frm a hidden abnrmality, suddenly and withut warning acts abnrmally. Cttn v Cmmissiner fr Rad Transprt and Tramways Different standards apply fr a circumstance where a driver is appraching smene wh is in sme way abnrmal, eg appears t be drunk, blind etc. In Rberts v Ramsbttm, where the defendant cllided with anther n the rad because he had suffered a mild strke, was liable f negligence. His standard f care while n the rad was t be assessed bjectively disregarding any mental incapacity

4 shrt f autmatism, just as any physical infirmity r inexperience wuld have been disregarded if such a defendant had elected t drive. A defendant with a mental impairment which may reduce their cgnitive and fresight capacities - will still be held t the standard f a reasnable mentally cmpetent persn: Carrier v Bnham Carrier v Bnham A chrnic schizphrenic sufferer attempted suicide by stepping in frnt f a bus, hlding him liable in negligence The judge distinguished it frm McHale v Watsn and said that as unsundness f mind is nt a nrmal stage f develpment it attracts sympathy but nt immunity Physical Disabilities/Old Age Defendants physical characteristics, but nt their mental pwers, must be cnsidered. When a man has a distinct defect f such a nature that all can recgnise it as making certain precautins impssible, he will nt be held answerable fr nt taking them Hlmes, The Cmmn Law There is very little authrity as t whether this is taken int accunt in setting the standard It is likely that even if it were, the perative issue wuld be whether the persn was negligent fr having allwed themself t be in the risk creating situatin in the first place in light f their disability. The High Curt has held that the law permits a subjective test where the issue is ne f cntributry negligence; accrdingly, persn suffering frm a disability are required nly t take such reasnable care fr their wn safety as their infirmities permit In Daly v Liverpl the curt lked at the age f the 67 year ld wman in determining whether there was cntributry negligence in her crssing the rad, nt a hypthetical persn Hwever, any bservable mental r physical deficient f the plaintiff may, additinally, be a material factr in determining whether the defendant was negligent. The driver f a car will nt be at fault because a pedestrian, suffering frm a hidden abnrmality, suddenly and withut warning acts abnrmally. Cttn v Cmmissiner fr Rad Transprt and Tramways

5 The curts have tended t allw sme sympathy fr peple wh are thrwn int a critical psitin. Hwever this wuld nly ccur if they had n time at all t react. In Rberts the curt held that if a defendant was in a state f autmatism when the negligent act ccurred but had been aware f symptms and ignred them, they will be guilty. Intelligence A persn s actins must cnfrm t certain criteria expected f a persn f nrmal intelligence in a given situatin It is n defence that defendants acted t the best f their wn judgment It is presumed that a persn whse reactins are slwer than average is nt excused Prbably, a persn whse intelligence is superir r whse reactins are quicker than average is nt liable fr failing t use thse qualities. Knwledge Memry and experience If X had been n a certain highway man times, and a reasnable driver wh had been there as ften wuld knw that it was busy, then X is als expected t knw, even thugh X s memry is s pr that X des nt remember it. One is als deemed t knw thse things which adults frm their experience are expected t knw: eg. That sme things easily explde, law f gravity Hwever, where the status f the persn is relevant then the standard is that f a persn in that psitin. In The Wagn Mund (N 2) the Privy cuncil held a shipwner liable fr a fir caused by discharging il in Sydney harbur n the basis that the chief engineer shuld have knwn that the discharge created a real risk f the il n the water catching fire Knwledge f the facts and surrunding circumstances There is n excuse fr failing t bserve what a reasnable persn wuld have bserved Hwever, even if they culdn t be expected t have persnal knwledge, they may be required t btain and fllw special advice, Actual knwledge f the circumstances n the part f the defendant increases the standard f care impsed Brks v LNW Ry C 1884

6 It des nt necessarily fllw that the greater ne s memry r experience the greater is the measure f the care impsed. The curt expects specialists t keep abreast f advances in medicine, technlgy etc. The test is whether the defendant had taken adequate and reasnable precautins in the light f the state f medical, scientific r technlgical knwledge prevailing at the time f the accident Inexperience N accunt will be taken fr a particular defendant s inexperience with respect t the activity at hand T the extent that the case f Ck v Ck created an exceptin t that principle, it is verturned Imbree v McNeilly (2008) If yu are an inexperienced driver, yu are held t the standard f a nrmal car driver Until 2008, there was an exceptin Ck v Ck Held that there is a mdified standard f care wed by a driver wh is knwn t be unskilled and knwn t be inexperienced when the persn is injured is a passenger wh has vluntarily agreed t assist them when they driver Reduce the standard because the passenger is well aware Allwed wife t drive car even thugh she didn t have a licence He was injured in a result, and used her Imbree v McNeilly Rejected this exceptin Imbree was n a trip thrugh the utback McNeilly was 16 and a friend f Imbree s sn He knew his age and knew he had n learner s permit r licence but he had n ccasin driven cars He was allwed the bys t drive the car McNeilly caused the car t rll ver and caused severe injuries t Imbree Imbree sued McNeilly

7 What is the standard? Ablished precedent f Ck. Nw we nly lk at the standard f a reasnable driver Arguments t verturn: Yu ve applied the issue f inexperience very incnsistently Why wuld we make an exceptin fr passengers but nt thers, eg. Thse driver near L platers (nt really vluntary critique) It had t be mdified t the wrld at large Inexperience is an idisyncrasy each wuld have a different standard We can address this prblem smewhere else Vluntarily assumptin f risk Cntributry negligence Skill 58. Standard f care t be expected f persns hlding ut as pssessing a particular skill In a case invlving an allegatin f negligence against a persn (the defendant) wh hlds himself r herself ut as pssessing a particular skill, the standard t be applied by a curt in determining whether the defendant acted with due care is, subject t this Divisin, t be determined by reference t- (a)what culd reasnably be expected f a persn pssessing that skill; and (b)the relevant circumstances as at the date f the alleged negligence and nt a later date. 59. Standard f care fr prfessinals (1)A prfessinal is nt negligent in prviding a prfessinal service if it is established that the prfessinal acted in a manner that (at the time the service was prvided) was widely accepted in Australia by a significant number f respected practitiners in the field (peer prfessinal pinin) as cmpetent prfessinal practice in the circumstances. (2)Hwever, peer prfessinal pinin cannt be relied n fr the purpses f this sectin if the curt determines that the pinin is unreasnable. (3)The fact that there are differing peer prfessinal pinins widely accepted in Australia by a significant number f respected practitiners in the field cncerning a matter des nt prevent any ne r mre (r all) f thse pinins being relied n fr the purpses f this sectin. (4)Peer prfessinal pinin des nt have t be universally accepted t be cnsidered widely accepted. (5)If, under this sectin, a curt determines peer prfessinal pinin t be unreasnable, it must specify in writing the reasns fr that determinatin. (6)Subsectin (5) des nt apply if a jury determines the matter. Persns wh represent themselves as having attained standards f skills either in relatin t the public generally, eg. Driving a car, n in relatin t sme persn fr